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Child Endangerment Laws – An analysis of the legal factors considered in a child endangerment case.

An adult caring for a child has a legal responsibility to ensure that child is free from unreasonably dangerous situations. When an adult caregiver fails to adequately protect a child, states often punish this as a crime known as “child endangerment.”

Child endangerment occurs whenever a parent, guardian, or other adult caregiver allows a child to be placed or remain in a dangerous, unhealthy, or inappropriate situation. Some states charge this crime as a type of child abuse.

What Constitutes Child Endangerment?

Though state laws differ in how they categorize and punish child endangerment, it is a crime in every state. State laws share the following characteristics.

Actions or Situations That Endanger Children

Child endangerment laws are often very broadly applied, and any number of acts can lead to a conviction. Courts have held that obviously dangerous activities—such as having a child in a car while driving under the influence of alcohol or drugs—constitute child endangerment. Other dangerous activities that qualify include failing to properly secure a child while driving an automobile, exposing a child to drug transactions or manufacturing, having unsecured firearms in the same environment as a child, engaging in sexual activity in view of a child, or leaving a young child without proper supervision.

Actual or Potential Injury to a Child

Child endangerment laws are designed to punish behavior that might lead to a child becoming harmed, but they do not require that children actually suffer an injury or physical harm. State laws often categorize child endangerment as placing a child in a situation that might endanger the child’s life, health, welfare, morals, or emotional well-being. However, child endangerment may still be charged in cases where the actions of the caregiver did eventually result in the child being physically injured or harmed.

Reckless Endangerment

To obtain a conviction for child endangerment crime, a prosecutor does not have to show that a parent or caregiver intentionally meant to expose the child to a dangerous situation. The courts apply a “reasonable person” standard in child endangerment cases. This means that even if the accused didn’t realize the situation was dangerous, reasonable people in that situation would have understood their actions endangered the child’s well-being. The circumstances of each case will determine whether the accused either knew or should have known that the child was endangered.

Generally, an adult caregiver must do more than simply make a mistake or act unwisely. A caregiver must place a child in a situation where it is more likely than not the child will become exposed to harm. Courts have ruled, for example, that parents who left their child in a locked car with the engine running while they went into a store for approximately 40 minutes did not endanger the child. source

What is Child Endangerment?

The term, “child endangerment,” refers to a criminal act that occurs when a person subjects a minor child to a dangerous situation wherein the child is likely to experience serious harm or even death. The crime of child endangerment is often charged in connection with other crimes, such as assault, illegal drug use, and/or driving under the influence (“DUI”).A person does not necessarily need to be the child’s parent in order to be charged with child endangerment. A person may face child endangerment charges when they have assumed responsibility for the well-being and to look after a child, but fail to live up to this duty by knowingly or deliberately placing the child in harm’s way. In general, there are many types of activities that may qualify as a form of child endangerment.In addition, the laws and resulting punishment for being convicted on child endangerment charges will vary from state to state. Regardless of where a person is charged, however, child endangerment is considered a very serious offense. Depending on the activity and on the laws of the jurisdiction in which the activity occurred, child endangerment may be classified as either a misdemeanor or a felony offense.

This means that a prison or jail sentence can range from anywhere between a few months to several years. As with other crimes, the facts and circumstances surrounding a particular case will need to be taken into account. Accordingly, the more harm that is done to the child and the more extreme the facts of a specific case are, the more likely that a convicted defendant will receive a harsher punishment.

This general principle is especially true in cases where a court determines that the risk to a minor child is current or still ongoing. In cases where a minor child’s parents are the ones convicted of child endangerment, the parents may stand to lose the parental rights they have over their child in addition to the other penalties discussed.

What are Examples of Child Endangerment?

Whether a person has engaged in an activity with a child that constitutes child endangerment will be contingent on the laws of a particular state, including how a state law defines the term, “child.” For instance, some states no longer consider a minor to be a child once they reach the age of 16, while other states do not consider a child to be an adult until they reach the age of majority, which is typically 18.

The following are some common examples of the types of activities that generally qualify as criminal child endangerment in many states:

  • Abandoning a child without adult supervision in an unsafe neighborhood or venue;
  • Leaving a child alone in a motor vehicle (especially, when weather conditions are very hot or humid);
  • Failing to look after a child due to being under the influence of drugs and/or alcohol;
  • Operating a motor vehicle with a child while a person is intoxicated or under the influence of illegal or controlled substances;
  • Leaving a child with someone who is known to abuse or assault them;
  • Serving alcohol to a minor or to an underage driver;
  • Allowing a young child to remain in a home where no one is in charge or in the care of another minor or young child;
  • Manufacturing or making drugs in a home where a minor child resides;
  • Engaging in sexual conduct in front of a child;
  • Keeping weapons in a household with children and storing the weapons where a child can easily access them;
  • Failing to report known or suspected child abuse; and/or
  • Ignoring safety requirements for a car seat or booster seat that is being used by a child.

Thus, as is evident from the above examples, child endangerment charges can result not only from an adult’s actions, but also from an adult’s failure to take some kind of preventive action. For example, if the child’s caregiver deliberately stops a child from taking their prescribed medication, then this may be considered an act that would constitute child endangerment. source

 

Penal Code  273a(a) PC – Child Endangerment

Under Penal Code § 273a(a) PC, child endangerment means intentionally placing a child under 18 in a situation that endangers his or her health and safety. This includes exposing the child to unjustifiable pain, suffering, or danger. The law does not require the child to have actually suffered physical harm, only the possibility of harm due to an unreasonable risk.

Examples of what could lead to criminal charges include:

  • Leaving a dangerous weapon, such as a knife or a loaded firearm, where a child can easily reach it;
  • Leaving a child with a babysitter who has a history of abusive behavior,
  • Driving under the influence with a child in the car, or
  • Failing to get medical treatment for a very sick child.

“Child endangerment” is sometimes referred to as “child abuse.” But it should not be confused with Penal Code 273d, California’s “child abuse” law.1

What constitutes “child endangerment” in California?

Charges can be brought against anyone (not just parents). Usually, the adult is someone who has a minor (a child under 18) in their care.

Specifically, child endangering can be charged when you:

  • Cause or permit a minor to suffer unjustifiable physical pain or mental suffering,
  • Willfully cause or permit a minor to be injured, or
  • Willfully cause or permit a minor to be placed in a dangerous situation.2

(Note that under California’s “child neglect” law, Penal Code 270 PC, you may legally seek “faith-based” healing for your child. However, if the child is very ill or at risk of dying, you must get actual medical help.

 

1. How does California law define child endangerment?

To convict you under Penal Code 273a, a prosecutor must prove certain “elements of the crime.” Each element must be proved “beyond a reasonable doubt.”

1.1 The “elements of the crime” of child endangerment

The elements the prosecutor must prove are that:

  1. You did ONE of the following:
  • Willfully inflicted unjustifiable physical pain or mental suffering on a child,
  • Willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering,
  • While having care or custody of a child, willfully caused or permitted the child’s person or health to be injured, or
  • While having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child’s person or health was endangered;

AND

  1. You were criminally negligent when you caused or permitted the child to suffer and/or be injured or endangered;

AND

  1. If you were the minor’s parent, you were not reasonably disciplining the child. 7

Additional element in order to prove felony endangerment

There is one additional element the prosecutor must prove if you are charged with Penal Code 273a as a “wobbler.”

In such a case the prosecutor must prove that you acted under circumstances that were likely to produce

  • “great bodily injury” or
  • death.8

It is not necessary that your actions ultimately caused such harm or death. It is only necessary that it was a likely outcome.9

We discuss the meaning of “great bodily injury” at length below.

But first, let us take a closer look at some of the other legal terms to gain a better understanding of their meanings.

1.2. The legal definition of “willfully”

Under California law, an act is done “willfully” if it is done on purpose.10

This does not necessarily mean that you intended to break the law or cause any harm. It simply means that you purposely did an act that could have resulted in harm.

Example: Eva works as a waitress. She has a two-year old son from a prior relationship. She also has a new boyfriend, Hiram, who has just moved in with her.

But soon, Eva begins to worry about her son. When she leaves him with Hiram, accidents seem to happen. The boy has suffered burns, a broken arm and a black eye. Still, Eva has to work. So she leaves her son in Hiram’s care.

One day while Eva is gone, Hiram shakes the boy so hard the child dies. Hiram is convicted of Penal Code 273ab(a), assault causing the death of a child.11

Also, Eva is convicted of child endangerment. Even though she did not intend to break the law or injure her son, she willfully allowed her violent boyfriend to take care of him.12

Leaving a child with someone abusive may constitute child endangerment under California Penal Code 273a.

1.3. Unjustifiable physical pain or mental suffering

“Unjustifiable physical pain or mental suffering” means pain or suffering that either:

  • Is not reasonably necessary, or
  • Is excessive under the circumstances.13

1.4. The legal meaning of “criminal negligence”

Criminal negligence involves more than

  • ordinary carelessness,
  • inattention, or
  • mistake in judgment.

You act with criminal negligence when:

  1. You act in a reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation;
  2. Your acts amount to disregard for human life or indifference to the consequences of your acts; AND
  3. A reasonable person would have known that acting in that way would naturally and probably result in harm to others.”14

In other words, behavior amounts to “criminal negligence” when it is so aggravated, gross, or reckless that it goes against common sense.15

The test is whether a “reasonable” person in a similar situation would have engaged in the same behavior.16

Example: Catherine has a hyperactive seven-year-old son, Joey. Joey often does not listen to Catherine’s instructions.

One day, Joey runs toward a busy street, ignoring Catherine’s cries for him to stop. Catherine catches him just as he is about to run into the street and tackles him. In doing so, she knocks him to the ground and causes him to bump his head badly.

Catherine did inflict physical pain on her son. Though her actions were reasonably necessary to keep her son from experiencing worse injuries. So Catherine probably did not commit child endangerment.

1.5. Examples of criminal negligence

The following examples are based on actual California court cases. In the first two, the court ruled that there was criminally negligence. In the second two cases, no criminal negligence was found.

Where criminal negligence was found

Example: Edward, a man in his thirties, convinces his 14-year-old neighbor, Jason, to play “Russian Roulette.” Edward loads the gun with one round, spins the cylinder, and hands the gun to Jason.

Jason pulls the trigger and the gun goes off, killing him. Even though Jason shot himself, Edward was criminally negligent for giving a child a loaded gun and convincing him to pull the trigger.17

Example: Brian runs a methamphetamine lab in his home. He keeps dangerous and highly flammable chemicals throughout the house. Some are in floor-level cabinets that do not lock.

Brian’s 6-year-old stepson lives with him part-time. Brian is criminally negligent for allowing a 6-year old to be in the presence of such chemicals.18

Where no criminal negligence was found

If an act was the result of ordinary

  • carelessness,
  • inattention, or
  • a mistake in judgment,

it is not criminal negligence — regardless of the consequences.19

Here is an example from an actual court case:

Example: Isabel leaves her four small children (between the ages of 2 and 6) home alone while she goes to a bar. Hours later, a fire erupts. A neighbor is able to save three of the children, but the two-year-old is killed in the fire.

Isabel was grossly negligent. Though it was not criminal negligence because a reasonable person would not necessarily have foreseen the harm that arose from her actions. Thus, she is not guilty of child endangerment.20

1.6. The legal definition of “great bodily injury”

“Great bodily injury” is defined under California law simply as any significant or substantial physical injury. Great bodily injury does not include injuries that are

  • minor,
  • trivial, or
  • even moderate.21

The existence of “great bodily harm” is determined by the jury on a case-by-case basis.22 Because of this, overzealous prosecutors tend to allege it every chance they get.

It is important to remember that the issue is NOT whether the child actually suffered an injury. The relevant factor is whether the child was placed in a situation where they were likely to suffer injury.23

That said, if the child does suffer great bodily harm, the prosecutor is more likely to file felony charges.

When “great bodily harm” occurs as a result of child endangerment, felony charges may be filed.

2. How do I fight the charges in court?

The penalties, punishment, and sentencing can vary greatly. Though they mostly depend on whether your actions created a risk of “great bodily harm” or death to the child.24

2.1. Misdemeanor penalties

If your behavior did not create a risk of great bodily injury or death, the crime is a misdemeanor offense.25

As a misdemeanor, PC 273a child endangerment can be punished by:

  • Up to six (6) months in county jail, and/or
  • A fine of up to one thousand dollars ($1,000).26

2.2. Misdemeanor probation

The judge also has the option to sentence you to misdemeanor probation if you are convicted of violating PC 273a. This is also known as “informal” probation or “summary” probation.

Under California law, the minimum period of probation the judge can order for a child endangerment conviction is four (4) years.27 Such probation may also entail:

  • A protective (restraining) order protecting the alleged victim from further acts of violence. This order may include a “stay away” provision that prohibits you from contact with the child. The stay away order may apply to the child’s residence even if it is also your home.
  • Successful completion of a court-approved child abuser’s treatment counseling program lasting at least one (1) year.
  • Additional conditions if you were under the influence of a controlled substance and/or alcohol at the time of the offense. These can include:
    • An order to abstain from drug and alcohol use for the duration of probation, and
    • Possibly, random drug testing.28

Can the condition of probation be waived, terminated, or expunged?

The court may waive any of the above conditions if it finds that such a condition would not be in the “best interests of justice.”29

The court may also grant early termination of probation if you comply with all the terms and conditions of probation for the first year or two.30

And finally, if you receive probation, you may expunge your California criminal record. You may do so once you successfully complete the probationary period.

But a judge can deny a petition for an expungement if:

  • You committed a probation violation, or
  • You failed to adhere to all the terms and conditions of probation.31

2.3. Felony penalties

Child endangerment becomes a “wobbler” offense if there was a risk of great bodily harm or death to the child. A prosecutor can choose to charge a “wobbler” as either a misdemeanor or a felony, depending on:

  1. The exact circumstances of the allegations, and
  2. Your criminal history (if any).

Consequences of a felony conviction can include:

  • Two (2), four (4), or six (6) years in California state prison,32 and/or
  • A fine of up to ten thousand dollars ($10,000).33

Or the judge can sentence you to a minimum of four years of formal (felony) probation. The conditions of such probation are the same as set forth in Section 2.2., above.34

If you are sentenced to felony probation, you may also expunge the conviction as set forth above.

Felony child endangerment penalties can include up to six years in prison.

2.4. Great bodily injury enhancement

In addition to the above felony penalties, you may receive a “sentencing enhancement.” An enhancement may apply if the child is actually seriously harmed as a result of your criminal negligence.

The applicable enhancement will result in an additional and consecutive term in the California state prison as follows:

  • If you actually and personally inflicted great bodily injury on the victim: an additional and consecutive three (3) to six (6) years, depending on the victim’s age and the nature of the injuries;35 or
  • If the child died as a result of your criminal negligence: an additional and consecutive four (4) years in prison.36

2.5. Manslaughter or murder penalties

In extreme cases, a prosecutor might choose to file more serious charges when a child dies as a result of endangerment. Such charges can include:

  • Penal Code 192 (b) PC involuntary manslaughter,
  • Penal Code 192 (a) PC voluntary manslaughter, or
  • Penal Code 18 PC second-degree murder.

2.6. Child endangerment and California’s “three strikes” law

A felony child endangerment conviction can count as a “strike” under California’s “Three Strikes” law. It will count as a strike if the child actually suffered great bodily injury.37

If you have a strike on your criminal record and you are subsequently charged with any felony, you will be considered a “second striker.” As such, the sentence for the later offense will be twice what it would otherwise be.38

If you become a “third striker,” you will serve a mandatory minimum sentence of 25 years to life in California state prison.39

3. How do I fight the charges in court?

Many common legal defenses can be used in Penal Code 273a cases. These include

  • failure to comply with California’s search and seizure laws or
  • any type of police misconduct.

Though there are also certain defenses that uniquely apply to California child endangerment, abuse and neglect cases.

These include taking one or more of the following positions:

The act was not willful or did not amount to criminal negligence

In order to secure a PC 273a conviction, the prosecutor usually must prove you acted

  • willfully and/or
  • with criminal negligence.

The prosecutor must prove this “beyond a reasonable doubt.”

There are many ways an experienced California criminal lawyer can establish enough reasonable doubt for a “not guilty” verdict (an “acquittal”).

For instance, perhaps the injury was the result of an accident or ordinary negligence. If so you did not violate the statute.

Example: Kate is cooking dinner and watching her 3-year old daughter when the phone rings. Kates puts her knife down on the cutting room and walks out of the room briefly to get the phone. While she is gone, her daughter picks up the knife, cutting several of her fingers to the bone.

Although Kate was negligent, she was not criminally negligent. Criminal negligence requires more than mere inattentiveness. A reasonable person might assume a three-year old would not pick a knife up from the counter in the short time it took to answer the phone.

You were reasonably disciplining your child

You have the right to discipline your children in California through “reasonable” corporal punishment.40 “Corporal punishment” means physical punishment or punishment inflicted on the body. Examples include:

  • Spanking,
  • Disciplining a child with a belt or paddle,
  • Sending a child to bed without any supper,
  • Confining a child to their room.

Sometimes an experienced California defense attorney can convince the prosecutor, judge, and/or jury that you were just reasonably disciplining a child.

Example: Betty’s five-year old son throws a temper tantrum in the dressing room when she takes him shopping for school clothes. Betty grabs a belt she brought into the dressing room and smacks him across the back of his bare thighs with it.

The sales clerk sees it and calls the store’s security guard, who then calls the police. Betty is arrested and charged with PC 273a. Betty’s lawyer can argue that Betty is not guilty of child endangerment because under the circumstances she was reasonably disciplining her child.

False accusations

Many child endangerment cases start with a false accusation. Sometimes a child will make a false allegation as the result of manipulation by the other parent.

Perhaps the child is angry and wants to “get back” at you. This often occurs

  • during a divorce or
  • when you have a new partner.

Or a child’s caretaker might make a false accusation in order to cover up their own abuse.

Whatever the cause, the end result is the same. Law enforcement officers do not want to be responsible for ignoring possible harm to a child. So they arrest you just for being accused.

How we fight false allegations

When you are accused of Penal Code 273a child endangerment, we review all the evidence that may prove your innocence.

This includes interviewing everyone who may have witnessed the incident. We will also interview other people in your life for evidence that you are a good

  • parent or
  • caretaker.

Depending on the allegations, we will also pull criminal records, school/employment records, etc. of other potentially responsible people.

We will also comb through the social media accounts of the child and others who may be involved.

In short, our skilled investigators and lawyers turn over every stone to find “exculpatory” evidence.

“Mistake of fact”

Sometimes accusations arise because you misinterpret a situation. This is known as a “mistake of fact” under California law.

This problem is made worse by California’s mandatory reporting law. 41 Under this law, professionals (such as doctors, teachers, and clergy) are legally required to report suspected child endangerment to the authorities.

If they do not, they can be charged with a misdemeanor. They may even serve time in jail.42 Thus they are under strong pressure to report even the slightest suspicion of child endangerment.

Example: Phil’s son, Jake, comes home from school with cuts and bruises on the side of his face. He tells Phil he fell off his bike. The next day one of the cuts looks as if it might be infected. So Phil takes Jake to the doctor.

The doctor is not sure about the bike story. He suspects that Jake’s injuries may have been caused by someone hitting him. So he calls social services. Eventually Phil’s lawyer finds a witness who can verify that Jake fell off his bike. Though in the meantime, Phil is arrested and charged with child abuse and endangerment.

Someone else endangered the child

Overzealous police and prosecutors want to hold someone accountable when a child may be in danger. They often jump to conclusions about who is responsible.

To see how this can happen, let us go back to our last example.

Example: Jake tells his father, Phil, that he cut and bruised his face when he fell off his bike. Phil takes him to the doctor, who suspects that Jake’s injuries were caused by a fist. He calls the authorities and Phil is arrested.

After interviewing Jake’s teachers and friends, Phil’s lawyer discovers that Jake is being bullied at school. He was hit by a group of older boys. Phil’s lawyer shows this evidence to the prosecutor and the charges against Phil are dropped.

4. Are there other charges filed in connection with child endangerment?

Many other “domestic violence” crimes have similar elements to Penal Code 273a. These related offenses are sometimes charged instead of, or in addition to, child endangerment.

Below we discuss briefly some of the most common offenses charged along with or instead of child endangerment.

4.1.Penal Code 273d PC – child abuse

Penal Code 273d PC, California’s child abuse law, makes it a crime to direct physical abuse at a minor. This crime does not require great bodily injury. Though there must be some kind of injury (no matter how slight) to trigger this charge.43

California child abuse is a “wobbler.”

As a misdemeanor, PC 273d can be punished by:

  • Up to one (1) year in county jail, and/or
  • A fine of up to $6,000.44

Penalties for felony child abuse can include:

  • Two (2), four (4) or six (6) years in state prison, and/or
  • A fine of up to $6,000.45

4.2. Penal Code 270 PC – failure to provide care (child neglect)

A less serious offense is California Penal Code 270 PC failure to provide care (child neglect). PC 270 can be charged when you fail to provide physical necessities to your child.

For purposes of PC 270, “necessities” means

  • food,
  • shelter,
  • clothing, and
  • medical care.46

Though you are not guilty of this crime if – through no fault of your own – you cannot afford such necessities.47

Penal Code 270 is charged as a misdemeanor in most cases. It can be punished by:

  • Up to one (1) year in jail, and/or
  • A fine of $2,000.48

With subsequent convictions, PC 270 may be charged as a wobbler. In extreme cases, penalties can include a year and a day in California state prison.49

Child neglect is often charged along with child endangerment in California.

4.3. Penal Code 288 PC – lewd acts with a minor

California Penal Code 288 PC, lewd acts with a minor, punishes improper touching of a minor child. It is charged when someone touches a child for sexual purposes and the child:

  • Is under the age of 14,50 or
  • Is 14 or 15 years old (if you are 10 or more years older than the child).51

Penalties for lewd acts with a minor depend on various factors, including:

  • The age of the victim,
  • The difference in age between you and the victim, and
  • Whether you were the child’s caretaker.52

Though it can often include many years in state prison as well as a fine of up to $10,000.53

4.4. Driving under the influence

California’s DUI laws punish driving under the influence of drugs and/or alcohol.

Child endangerment is often charged along with DUI. This occurs when you are arrested for driving under the influence of

  • drugs and/or
  • alcohol

with a child in the car.

Or the prosecutor might just charge DUI with a sentencing enhancement.54

The enhancement adds several days to a DUI jail sentence, depending on whether you have prior DUI convictions.

California law also requires drivers with young children to use child restraint systems (Vehicle Code 27360 VC).

For more information, please see our page on “California DUI with a child under 14 in the car” (Vehicle Code 23572 VC).

4.5. Charges involving the death of a child

In the unfortunate case in which a child died, a prosecutor might charge one or more of the following in addition to, or instead of, child endangerment:

Penal Code 273ab – child abuse resulting in death to a child under 8

PC 273ab can be charged when:

  1. You had care and custody of a child under the age of eight (8),
  2. You assaulted that child by means likely to result in great bodily injury, AND
  3. The child died or became paralyzed or comatose as a result of such injuries.55

Depending on the injury, PC 273ab can be punished by twenty-five (25) years to life in the state prison.56

Penal Code 187 PC – murder

Killing a child with “malice” (intent to kill) can be charged as Penal Code 187, murder.57

It is “second-degree murder” when the killing is willful but is not deliberate and premeditated. If the killing is deliberate and premeditated, it is “first-degree murder.”58

Murder charges typically result from child endangerment in one of two ways:

  • As a result of California’s felony-murder rule, or
  • Because there was “implied malice.”59

“Felony-murder” assumes malice exists when someone kills another person while committing a felony. This can include felony charges.60

Implied malice exists when you engage in highly reckless behavior that you know endangers another person’s life. This is a higher degree of culpability than criminal negligence.61

Both of these situations typically result in second-degree murder charges. Penalties for second-degree murder in California can include

  • 15 years to
  • life in state prison.62

Penal Code 192(b) involuntary manslaughter

When criminal negligence results in death, it can be charged as Penal Code 192(b) PC, involuntary manslaughter. The main difference between manslaughter and murder is that manslaughter does not involve “malice.”63

The most common type of manslaughter charged in child endangerment cases is “involuntary manslaughter.” It is charged when the death of a minor results from either:

  • The commission of an unlawful act that does not rise to the level of a felony, or
  • You engaging in a lawful but dangerous act without due caution.64

Example: Laurie is a devout Christian Scientist. When her four-year-old daughter gets sick, Laurie takes her to a Christian Science practitioner rather than a doctor. This is perfectly legal.

But unknown to Laurie, her daughter has meningitis. The child continues to get sicker. Still Laurie does not take her to a doctor. At this point, Laurie could be charged with child endangerment.

Eventually Laurie’s daughter dies from the illness. The prosecutor charges her with this section AND involuntary manslaughter. The prosecutor takes the position that not taking the girl to a doctor was, under the circumstances, dangerous and done without due caution.65

4.6. Furnishing dangerous fireworks to a minor

One very specific offense that is sometimes charged along with child endangerment is California Health & Safety Code 12702 PC.

This law makes it a crime to sell, give or deliver “dangerous fireworks”66 (such as rockets and large sparklers) to a minor under eighteen (18).

The penalties for this misdemeanor offense can include:

  • Up to one (1) year in county jail, and/or
  • A fine of $500 to $1,000.67

 

source

Legal references:

  1. See California Penal Code 273d(a): “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 ($6,000), or by both that imprisonment and fine.”
  2. California Penal Code 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…”
  3. Penal Code section 270 PC. See also Walker v. Superior Court (1988) 47 Cal. 3d 112.
  4. Penal Code 273a(b), endnote 2.
  5. Penal Code 273a(a), endnote 2.
  6. Penal Code 1203 PC.
  7. Penal Code 273a(b) PC. See also California Criminal Jury Instructions (CALCRIM) 823. Child Abuse. See also Bom v. Superior Court (Cal. App. 2d Dist., 2020), 257 Cal. Rptr. 3d 276; Diaz-Rodriguez v. Garland (9th Cir., 2021) 12 F.4th 1126.
  8. Penal Code 273a(a); CALCRIM 823.
  9. Penal Code 273a(b). See also People v. Jaramillo (1979) 98 Cal.App.3d 830 (“For the felony punishment there is no requirement that the actual result be great bodily injury. The statute is intended to protect a child from an abusive situation in which the probability of serious injury is great.”)
  10. Penal Code 7 PC, subsection 1.
  11. Penal Code 273ab(a): “Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 [second-degree murder] or Section 189 [first-degree murder].”
  12. Facts based on People v. Valdez (2002) 27 Cal.4th 778.
  13. See CALCRIM 821, Child Endangerment Likely to Produce Great Bodily Harm or Death: “[Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances.]”
  14. “CALCRIM 821: Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: 1. He or she acts in a reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation; 2. The person’s acts amount to disregard for human life or indifference to the consequences of his or her acts; AND 3. A reasonable person would have known that acting in that way would naturally and probably result in harm to others.”
  15. People v. Valdez, endnote **. (“The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life … or an indifference to consequences.”). See also People v. Penny (1955) 44 Cal. 2d 861.
  16. Same.
  17. Based on People v. Hansen (1997) 59 Cal.App.4th 473.
  18. Based on People v. Toney (1999) 76 Cal.App.4th 618.
  19. People v. Odom (1991) 226 Cal.App.3d 1028. (“The facts must be such that the consequences of the negligent conduct could reasonable have been foreseen and it must appear that the [death] [danger to human life] was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of aggravated, reckless or flagrantly negligent conduct.”) See also People v. Peabody (1975) 48 Cal.App.3d 43 (“The conduct must be aggravated or reckless; that is, it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life. The conduct must show an indifference to the consequences, and this has been said to require knowledge, actual or imputed, that the act tends to endanger another’s life. See also People v. Rodriguez (1961) 186 Cal.App.2d 433 (“Mere inattention or mistake in judgment … is not criminal unless the quality of the act makes it so. The fundamental requirement fixing criminal responsibility is knowledge, actual or imputed, that the act of the accused tended to endanger life.”)
  20. Based on People v. Rodriguez.
  21. Penal Code 12022.7(f). See also California Jury Instructions – Criminal (“CALJIC”) 17.20 – Infliction of great bodily injury.
  22. People v. Escobar (1992) 3 Cal.4th 740, 750. (“Whether the harm resulting to the victim … constitutes great bodily injury is a question of fact for the jury.”)
  23. People v. Jaramillo (1979) 98 Cal.App.3d 830. (“For the felony punishment there is no requirement that the actual result be great bodily injury. The statute is intended to protect a child from an abusive situation in which the probability of serious injury is great.”)
  24. Penal Code 273a PC.
  25. Penal Code 273a(b) PC.
  26. Same. See also Penal Code 19 PC: (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)
  27. Penal Code 273a(c)
  28. Same.
  29. Penal Code 273a(c)(5), endnote 7.
  30. Penal Code 1203.3 PC.
  31. Penal Code 1203.4 PC.
  32. Penal Code 273a(a) PC.
  33. Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
  34. Penal Code 273a(c).
  35. Penal Code 12022.7 PC – Enhancement for great bodily injury.
  36. Penal Code 12022.95 PC — Willful harm to a child resulting in death: “Any person convicted of a violation of Section 273a, 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 injury that results in death, or having the care or custody of any child, under circumstances likely to produce great bodily harm or death, willfully causes or permits that child to be injured or harmed, and that injury or harm results in death, shall receive a four-year enhancement for each violation, in addition to the sentence provided for that conviction. Nothing in this paragraph shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 192. This section shall not apply unless the allegation is included within an accusatory pleading and admitted by the defendant or found to be true by the trier of fact.”
  37. Penal Code 667.5(c) PC.
  38. Penal Code 667(e)(1) PC.
  39. Penal Code 667(e)(2) PC.
  40. People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050 (“A parent has a right to reasonably discipline by punishing a child and may administer reasonable punishment without being liable for a battery…[W]hether the corporal punishment falls within the parameters of a parent’s right to discipline involves consideration of not only the necessity for the punishment but also whether the amount of punishment was reasonable or excessive. Reasonableness and necessity therefore are not two separate defenses but rather two aspects of the single issue of parental right to discipline by physical punishment.”)
  41. See also 80 Ops.Cal.Atty.Gen. 203 (1997); CALJIC 4.80.
  42. Penal Code 11165 PC and subsequent sections.
  43. See California Department of Social Services, “The California Child Abuse & Neglect Reporting Law: Issues & Answers for Mandated Reporters”.
  44. Penal Code 273d(a): “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 ($6,000), or by both that imprisonment and fine.”
  45. Same.
  46. Same.
  47. Penal Code 270 PC.
  48. Same. See also People v. Caseri (1933) 18 P.2d 389.
  49. Penal Code 270 PC.
  50. Same.
  51. Penal Code 288 (a).
  52. Penal Code 288(c).
  53. See Penal Code 288 (a) – (c).
  54. Same. See also Penal Code 288 (e).
  55. California Vehicle Code 23572
  56. Penal Code 273ab:
  57. Same.
  58. Penal Code 187(a): “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”
  59. Penal Code 189
  60. Penal Code 188
  61. Same. (“[I]mplied malice has both a physical and a mental component, the physical component being the performance of ‘ “an act, the natural consequences of which are dangerous to life,” ‘ and the mental component being the requirement that the defendant ‘ “knows that his conduct endangers the life of another and … acts with a conscious disregard for life.”)
  62. Penal Code 190
  63. Penal Code 192
  64. Same.
  65. Facts based on Walker v. Superior Court (1988) 47 Cal.3d 112.
  66. “Dangerous” fireworks are defined in California Health and Safety Code 12505 HS.
  67. Health & Safety Code 12702 HS.

 

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