Can I slap my kid in California?

California's child abuse law is defined under Penal Code section 273d. Under PC 273d, the statute makes it illegal to intentionally commit any cruel or inhuman corporal punishment or injury resulting in a traumatic condition on a child.

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Corporal punishment or injury of child a.k.a. “child abuse” in California, is a “wobbler” offense, which means it can be charged as either a felony or a misdemeanor. Nonetheless, it is taken very seriously and something that will stay on your record for the rest of your life. Therefore, it is highly recommended you retain an experienced and highly qualified criminal defense attorney who can fight on your behalf.

Definition of Child Abuse

California’s child abuse law is defined under Penal Code section 273d. Under PC 273d, the statute makes it illegal to intentionally commit any cruel or inhuman corporal punishment or injury resulting in a traumatic condition on a child.

What does it mean to violate PC 273d (Child Abuse)?

An individual is guilty of violating this law if they:

Willfully inflicted cruel or inhuman physical punishment and/or an injury on a child; and The punishment and/or injury inflicted by the defendant caused a traumatic physical condition to the child. The prosecution must prove a third element if parental right to discipline is involved:

When the defendant acted, he/she was not reasonably disciplining a child.

Definitions:

Willfully means the act was done intentionally or on purpose.

means the act was done intentionally or on purpose. A child is any person under 18 years old. Under the law, a person turns one year older at the first minute of birth. For example, Junior was born January 1, 2000 at 3:30 p.m. Junior turns 18 on January 1, 2018 at 3:30 p.m. Traumatic physical condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. 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. Natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. When determining what’s natural and probable, the jury may consider all the circumstances established by the evidence. Substantial factor is more than a trivial or remote factor. But it does not need to be the only factor, which caused the traumatic condition.

is any person under 18 years old.

Example:

Timmy threw a temper tantrum in the middle of a toy aisle at B-Mart. John, Timmy’s father, repeatedly told Timmy to stop crying and screaming, but to no avail. John noticed a crowd forming around them, watching Timmy’s tantrum. John’s embarrassment eventually grew into boiling anger. To silence Timmy, John raised his hand and delivered a slap to Timmy with such force that Timmy’s tooth was knocked out. B-Mart security saw what John did, notified law enforcement, and John was arrested and eventually charged with violating PC 273d. In the above example, it is important to realize a traumatic condition doesn’t have to be as serious as a tooth getting knocked out. A traumatic condition in the above scenario could also have been a bruise on Timmy’s face. Moreover, John cannot argue he was reasonably disciplining Timmy for his temper tantrum as it is unlikely a forceful slap resulting in a lost tooth was reasonable discipline.

Similar/Related Offenses

California’s Penal Code Section 273a Child Endangerment

California’s child endangerment law is defined under Penal Code section 273a. Under PC 273a, the statute makes it illegal to: Willfully cause or permit a child to suffer, inflict unjustifiable physical pain or mental suffering; Willfully causes or permits person or health of child to be injured; or Willfully causes or permits child to be placed in situation where his/her health is endangered. Oftentimes, PC 273a child endangerment is erroneously called child abuse. However, the main difference is that child endangerment means the child was placed in a situation where his or her health or safety was endangered while child abuse means there was an intentional physical injury or harm.

Example:

Jenny, a recent divorcee, began dating Paul. However, Jenny knew Paul had a history of violence and most of his violent incidents were alcohol fueled. Jenny had an emergency at work so she asked Paul to come over and watch her precocious seven-year-old, Carter. Paul came over, but not without a few drinks to calm his nerves before dealing with precocious Carter. Immediately after Jenny leaves, Carter throws a temper tantrum. Paul, with lessened inhibitions, picks up Carter and throws him into a wall. Neighbor Nelly, who heard Carter crying and then a dull “thud”, calls officers, who come and arrest Paul. Prosecutors charge Paul with PC 273d (child abuse), but also charge Jenny with PC 273a (child endangerment) for leaving Carter with Paul, who she knew to be violent.

California’s Penal Code Section 270 Failure to Provide Care (Child Neglect)

This law makes it illegal for a parent of a minor child to willfully neglect, without lawful excuse, necessary clothing, food, shelter, medical attendance, or other remedial care for that minor child.

California’s Penal Code Section 242 Simple Battery

This law makes it illegal to willfully and unlawfully use force or violence upon the person of another. Sometimes, a defendant may be convicted of battery instead of child abuse if the injury did not involve “cruel or inhuman” punishment and/or result in a “traumatic condition.”

Example:

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Same facts as the scenario of John and Timmy at B-Mart. However, John’s slap was not as forceful and Timmy’s doctors concluded Timmy suffered no injury. Instead of charging PC 273d, the prosecutor charges John with PC 242.

For more information, please see our article on battery.

The Prosecution

For the prosecution to prove the defendant committed child abuse under PC 273d, they must first prove the elements of the crime took place. The prosecution must prove the following elements: Willfully inflicted cruel or inhuman physical punishment and/or an injury on a child; and The punishment and/or injury inflicted by the defendant caused a traumatic physical condition to the child. The prosecution must prove a third element if parental right to discipline is involved:

When the defendant acted, he/she was not reasonably disciplining a child.

Who Can Be Charged?

The following examples illustrate who can be charged with violating PC 273d.

Trey, a rebellious six-year-old, would continuously color on the walls despite being reprimanded by his parents several times. One day, Martha, who grew tired of cleaning up Trey’s unwanted artwork, decided to end the coloring “once and for all.” Martha picked up her leather belt and delivered a blow to Trey’s rear end so hard that he bled. Martha, who has lost her mind, delivers blow after blow until Trey passes out from the pain. Officers eventually arrive at the house and place Martha under arrest and transport Trey to the ER. The prosecutor charges Martha with violating PC 273d. Dan comes home after working several hours of overtime as a customer service representative for Orange, a manufacturer of cellphones. Dan had a terrible day dealing with irate customers, looking for refunds after a mass product recall. Dan was sassed left and right and just wanted to relax when he came home. However, Dan’s sassy six-year-old, Sally, broke the last straw and sassed Dan after refusing to eat her vegetables. Dan, who’s had enough sass, punches Sally in the mouth. Here, the prosecutor would charge Dan with PC 273d.

Legal Defenses

Facing charges for violating California’s PC 273d, child abuse, can be difficult to fight alone. An effective and aggressive criminal defense attorney will know the most common legal defenses to fight against these charges.

Did the defendant actually commit the elements of the crime?

It is important to understand if you did not commit the act willfully, you are not guilty of child abuse.

Example:

Bob was in the middle of a heated discussion with his teenage son about his failing grades. Bob, who could not believe the words coming out of his son’s mouth, grew extremely angry and he raised his fist to punch the wall. However, Bob did not hear or see his five-year-old son, Lyle, come into the room and between Bob’s fist and the wall. Bob’s fist ends up striking Lyle in the face resulting in a black eye. In the above example, Bob would not have violated PC 273d because he intended to strike the wall and not Lyle.

Was it “reasonable” corporal punishment?

A parent is not guilty of child endangerment if he or she was acting within the boundaries of his or her right to reasonably discipline the child.

Example:

Tommy, who was in a particularly sour mood, went up to his little brother, Johnny, and round housed him in the face. James, shocked by his son’s behavior, gave Tommy a spanking and sent him to his room. Undoubtedly, the spanking did not feel good and Tommy was not happy being isolated in his room. However, James was acting within his right to reasonably discipline his child and so, he is not guilty of child abuse.

False accusation?

Sometimes, a child abuse case can originate from a false accusation. This false accusation could come in many forms: The parents are in a hotly contested custody battle and one of the parents bribes the child to tell officers that the other parent harmed him. A child is angry at his parents and falsely accuses his parents of harming him out of spite to get them arrested. A trusted caretaker, who wants to cover his or her abuse of the child, bribes or threatens the child to tell police it was someone else.

Mistake of Fact?

In these types of cases, one person could misinterpret the situation and a false accusation of child endangerment could arise. This problem is exacerbated by California’s “mandatory reporting law.” Under that law, professionals are legally required to report suspected child endangerment to police. If not, those professionals could face misdemeanor charges. Professionals include, but are not limited to: doctors, teachers, and clergy members.

Example:

Tommy skateboards to school and on his way there, he hit a large rock and falls into some thorny bushes. Tommy ends up heavily scraped and bruised. A tough kid, Tommy brushes off his injuries and continues his merry way to school. Once in class, Ms. Finster, Tommy’s teacher, observes his injuries. Ms. Finster is aware that Tommy lives in low-income housing and incorrectly assumes the worst—Tommy’s father beat Tommy. Ms. Finster reports Tommy’s injuries to police and Tommy’s father is arrested.

Penalties

PC 273d is considered a “wobbler” and as such, may be charged as a misdemeanor or a felony.

Misdemeanor

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If charged as a misdemeanor , the penalties are: (1) up to one year in county jail; and/or (2) fine up to six thousand dollars ($6,000).

Felony

If charged as a felony , the penalties are: (1) two, four, or six years in county jail; and/or (2) fine up to six thousand dollars ($6,000). There is an additional four years imposed if the defendant has a prior felony abuse conviction within the last ten years.

Probation

Sometimes, a defendant may be sentenced to probation instead of serving any custody time. The type of probation depends on the charge. Felony is formal probation and misdemeanor is summary probation. However, the following probationary conditions are mandatory :

Minimum thirty-six months of probation.

Criminal protective order protecting the victim from further acts of violence or threats. Also, if appropriate, residence exclusion or stay-away conditions. Successful completion of at least one year of child abuser’s treatment counseling program. Terms of probation will not be lifted until all reasonable fees regarding the counseling program are paid in full. However, the probationary period itself will not be extended because of non-payment. If the court finds the defendant doesn’t have the ability to pay, the court may reduce or waive the fees. If the offense was committed because the defendant was under the influence of drugs or alcohol, the defendant must refrain from drug or alcohol usage during the entire probationary period. Further, there will be random drug testing. It should be noted that the court may waive any of the above minimum conditions if the court finds it would not be in the best interests of justice.

Penalties for Similar/Related Offenses

California’s Penal Code Section 273a Child Endangerment

Penalties under PC 273a, child endangerment, mostly depend on whether the defendant’s actions created a risk of great bodily harm or death to the child. If no great bodily harm or death, PC 273a is a misdemeanor offense that is punishable by imprisonment in county jail not exceeding one year and a fine not exceeding one thousand dollars ($1,000). If there is great bodily harm or death, PC 273a is a felony offense that is punishable by imprisonment in state prison for two, four, or six years and a fine not exceeding ten-thousand dollars ($10,000). If a person is convicted for violating PC 273a and is given probation, the minimum terms of probation is as follows:

48 months of probation;

A criminal protective order, which protects the victim from further acts of violence or threats. If appropriate, residence exclusion or stay-away conditions; Successful completion of no less than one year of child abuser’s treatment counseling program, which must be approved by the probation department; The program would start as soon probation is granted. The program criteria are specified under PC 273.1. Defendant must produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports. If defendant was under the influence of drugs or alcohol at the time of the offense, the defendant must abstain from drug or alcohol usage during the entire probationary period. The defendant will be subject to random drug testing. The court may waive any of the above minimum conditions if that condition would not be in the best interests of justice. However, the court must state on the record why it’s granting the waiver(s).

California’s Penal Code Section 270 Failure to Provide Care (Child Neglect)

Misdemeanor – up to one year in county jail and/or a fine not exceeding two thousand dollars ($2,000). PC 270 is a “wobbler” and can be charged as a felony in some cases. Under PC 270, if a court has previously made a finding that: (1) a person is the parent of a minor child; (2) that person had notice of such finding; and (3) that person nonetheless willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance, or other remedial care for the child, the punishment is as follows: Felony – imprisonment in state prison for a determinate term of one year and/or a fine not exceeding two thousand dollars ($2, 000).

California’s Penal Code Section 242 Simple Battery

Misdemeanor – imprisonment in county jail not exceeding six months and/or a fine not exceeding two thousand dollars ($2,000).

For more information, please see our article on battery.

We Can Help

If you or someone you know is facing charges of violating California’s Penal Code section 273d, corporal punishment or injury of a child, it is highly recommended that you seek an experienced, knowledgeable, and reputable criminal defense lawyer. If you are located in the greater San Diego area, Orange County or Los Angeles, contact the Law Offices of Anna R. Yum. As a former prosecutor, Attorney Yum can spot the legal issues and attack the weaknesses in the government’s case in order to strive in achieving the best possible outcome. Don’t hesitate to contact a lawyer who will aggressively fight for your rights and your future. Call 619-233-4433 for a free consultation or consult with our San Diego Criminal Lawyer today.

annayumlaw.com - California's Corporal Punishment or Injury of Child Law a.k.a. “Child ...

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