Domestic Violence – Child Endangerment

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What are the penalties for Penal Code 273a(b) child endangerment?

The child endangerment offense that is most often charged in domestic violence cases is a misdemeanor. The maximum penalties for this misdemeanor include:

• up to one year in jail;
• a $1,000 fine;
• both a fine and imprisonment.

As in other domestic violence offenses, if the court chooses to impose a period of probation, then certain conditions will apply. Under Penal Code 273a(c), the period of probation must be for a minimum of 4 years, and the court must impose some kind of protective order. The court will also specify that the defendant complete at least one year of an approved child abuser’s treatment counseling program.[22]

What evidence will the Prosecutor use to try to prove a charge of child endangerment against me?

Even though domestic violence offenses almost always involve two adults, there are situations where children are present when adults are arguing or fighting. In those cases, the police will sometimes charge one (or both) of the adults with child endangerment. If you are charged with child endangerment under Penal Code 273a(b), the prosecution must prove the following elements of the offense beyond reasonable doubt:

• that you had care or custody of a child;
• that you caused or permitted the child to be placed in a situation where the child’s person or health was endangered;
• that you were criminally negligent when you caused or permitted the child to be endangered.
• Had care or custody of a child

I – Care Of Custody Of Child

This charge can only be filed against someone who is responsible for the child in question. The prosecution must show that, at the time when the child was endangered, the defendant was either caring for the child, or had custody of the child. This obviously allows for broader scope than just a parental relationship – for example anyone that cares for a child, such as another relative or a baby sitter, could be subject to this charge.

II – Defendant Caused Or Permitted The Child To Be Placed In A Situation Where Person Or Health Endangered

This element requires the Prosecutor to prove not only that the child was endangered, but that the defendant was responsible for that, or allowed it to occur. A wide variety of situations are covered, but one that is commonly seen is where a child is present when there is a violent incident between two adults, and the child was in danger of being hurt during the incident. For example, consider a scenario where a mother is nursing her child, and the father of the child attacks her while she is doing so – such an act could see the father charged not only with the attack on the mother, but also with endangering the child.

III Criminal Negligence

This element describes the state of mind that the prosecution must prove on the part of the defendant. To prove that the defendant was criminally negligent in endangering the child, they must show that the defendant acted with “more than ordinary carelessness, inattention, or mistake in judgment.”[15] So, this element requires the DA to prove a serious level of negligence. As set out in the Judicial Council of California Criminal Jury Instructions, the law states a person acts with criminal negligence when:

• 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;
• The person’s acts amount to disregard for human life or indifference to the consequences of his or her acts; and
• A reasonable person would have known that acting in that way would naturally and probably result in harm to others.[16]

Again, consider the example of the father who attacks the mother nursing their child. If he knows the mother is nursing the child, and completely disregards the child’s safety when he attacks the mother, then it might be easy to suggest that he acted in a criminally negligent way. However, what if the father had come up behind the mother, did not know that she was nursing the child, and stopped when he saw the child? In that case, while the father might be guilty in relation to his attack on the mother, the prosecution would probably not be able to prove that he was criminally negligent in relation to the safety of the child – so he could not be found guilty of this offense.