Child abuse

Multiple punishment

PC273d and PC273a(a) are not LIOs of each other. (People v. Lofink (1988) 206 Cal.App.3d 161, 166.)

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.

(c) If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of probation:

(1) A mandatory minimum period of probation of 48 months.

(2) A criminal court protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-away conditions.

(3) (A) Successful completion of no less than one year of a child abuser’s treatment counseling program approved by the probation department. The defendant shall be ordered to begin participation in the program immediately upon the grant of probation. The counseling program shall meet the criteria specified in Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports.

(B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees.

(4) If the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his or her probation officer.

(5) The court may waive any of the above minimum conditions of probation upon a finding that the condition would not be in the best interests of justice. The court shall state on the record its reasons for any waiver.

VC23153 and VC23582

(b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.

Elements

PC273a(a) punishes four different things.

(1) willfully or permitting a child to suffer

(2) inflicting physical pain or mental suffering

(3) while having custody or care of child, causing or permitting child to be injured

(4) while having custody or care of child, willfully or permitting child to be placed in situation that person or health is endangered

By contrast, criminal negligence is the appropriate standard when the act is intrinsically lawful, such as leaving an infant with a babysitter, but warrants criminal liability because the surrounding circumstances present a high risk of serious injury. Criminal negligence is not a “lesser state of mind”; it is a standard for determining when an act may be *790 punished under the penal law because it is such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances. When that departure endangers the person or health of a child and is “under circumstances or conditions likely to produce great bodily harm or death,” it constitutes a felony violation of the child endangerment statute. (People v. Valdez (2002) 27 Cal.4th 778.)

Section 273a(1) is an omnibus statute that proscribes essentially four branches of conduct. At the time of defendant's crimes, and in substantively identical form currently, it provided: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or [4] willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 4, or 6 years.” (People v. Sargent (1999) 19 Cal.4th 1206, 1216.)

section 273a(1) “can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.” (People v. Smith (1984) 35 Cal.3d 798, 806, 201 Cal.Rptr. 311, 678 P.2d 886.) We have also observed, however, that “[t]wo threshold considerations ... govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed ‘under circumstances or conditions likely to produce great bodily harm or death.’ (§ 273a, subd. (1).) Absent either of these elements, there can be no violation of the statute.” (Ibid.) Section 273a(1) is “ intended to protect a child from an abusive situation in which the probability of serious injury is great.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835, 159 Cal.Rptr. 771.) “[T]here is no requirement that the actual result be great bodily injury.” (People v. Sargent (1999) 19 Cal.4th 1206.)

The scienter required for both section 273a(1) and section 273 former subdivision (2) (now section 273a, subdivision (b)) violations is the same. The reference to the infliction of unjustifiable physical pain or mental suffering occurring “under circumstances or conditions likely to produce great bodily harm or death” in subdivision (1) simply states the context in which the subdivision applies. (See People v. Carter, supra, 60 Cal.App.4th at p. 755, 70 Cal.Rptr.2d 569 [“reference to domestic violence in [section 12022.7,] subdivision (d) was designed to describe the context in which the subdivision applies, not the intent requirement needed under that provision”].) It is for the trier of fact to determine whether the act was done “under circumstances or conditions likely to produce great bodily harm or death,” i.e., under conditions “in which the probability of serious injury is great.” (§ 273a(1); People v. Jaramillo, supra, 98 Cal.App.3d at p. 835, 159 Cal.Rptr. 771.) If so, the crime is punishable as a felony; if not, solely as a misdemeanor. (People v. Deskin, supra, 10 Cal.App.4th at p. 1401, 13 Cal.Rptr.2d 391.) (People v. Sargent (1999) 19 Cal.4th 1206.)

Under the first branch, a person may be guilty of felony child abuse if, “under circumstances or conditions likely to produce great bodily harm or death,” he “willfully causes or permits any child to suffer ... unjustifiable physical pain or mental suffering....” (Pen.Code, § 273a, subd. (a).)1 Crucial for present ***848 **422 purposes is the adverb “willfully.” In the setting of the statutory language, he must, at least, intentionally commit an act or omission that happens to result in a child “suffer[ing] ... unjustifiable physical pain or mental suffering.” He must do more as well. That is to say, he must “cause[ ] or permit[ ]” the child “to suffer ... unjustifiable physical pain or mental suffering” for the purpose of bringing about, or allowing, such a result. The reason is this: The adverb “willfully” modifies the verbs “causes” and “permits”; the object of those verbs is not an act or omission that happens to result in the child “suffer [ing] ... unjustifiable physical pain or mental suffering,” but rather that very result itself. (Cf. People v. Gorshen (1959) 51 Cal.2d 716, 730, 336 P.2d 492, disapproved on another point, People v. Wetmore (1978) 22 Cal.3d 318, 327, fn. 7, 149 Cal.Rptr. 265, 583 P.2d 1308 [holding that to kill “willfully” within the meaning of Pen.Code, § 189, means to act for the purpose of bringing about death].)2

Under the second branch — which is of particular concern here — a person may be guilty of felony child abuse if, “under circumstances or conditions likely to produce great bodily harm or death,” he “willfully ... inflicts ... unjustifiable physical pain or mental suffering” on “any child.” (Pen.Code, § 273a, subd. (a).)3 As explained above, he must, at least, intentionally commit an act that “inflicts” such “unjustifiable physical pain or mental *1227 suffering”; in addition, he must do so for the purpose of bringing about such a result.

Under the third branch, a person may be guilty of felony child abuse if, “under circumstances or conditions likely to produce great bodily harm or death,” he “willfully causes or permits the person or health” of any child in his “care or custody” “to be injured....” (Pen.Code, § 273a, subd. (a).) Again, he must, at least, intentionally commit an act or omission that “causes or permits the person or health” of such a child “to be injured”; in addition, he must do so for the purpose of bringing about, or allowing, such a result.

Under the fourth and final branch, a person may be guilty of felony child abuse if, “under circumstances or conditions likely to produce great bodily harm or death,” he “willfully causes or permits” any child in his “care or custody” “to be placed in a situation where” the child's “person or health is endangered....” (Pen.Code, § 273a, subd. (a).) Yet again, he must, at least, intentionally ***849 **423 commit an act or omission that “causes or permits” such a child “to be placed in a situation where” the child's “person or health is endangered”; in addition, he must do so for the purpose of bringing about, or allowing, such a result.

It follows that felony child abuse may be described as including three elements. The first goes to the perpetrator's context, specifically, “circumstances or conditions likely to produce great bodily harm or death.” (Pen.Code, § 273a, subd. (a).) The second goes to the perpetrator's conduct, specifically, an act or omission that “causes or permits” a child “to suffer ... unjustifiable physical pain or mental suffering,” or “inflict[s]” on a child “unjustifiable physical pain or mental suffering,” or “causes or permits the person or health” of a child in his “care or custody” “to be injured,” or “causes or permits” such a child “to be placed in a situation where” the child's “person or health is endangered.” (Ibid.) The third goes to the perpetrator's mental state, specifically, an intent to commit one of the *1228 proscribed acts or omissions, and a purpose to bring about, or allow, one of the proscribed results. (Ibid.)

(People v. Sargent, conc. opn of Mosk, J.)

Felony child abuse pursuant to Penal Code section 273a subdivision (1) “can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect. Two threshold considerations, however, govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed ‘under circumstances or conditions likely to produce great bodily harm or death.’ (§ 273a, subd. (1).) Absent either of these elements, there can be no violation of the statute.” (People v. Smith (1984) 35 Cal.3d 798, 806)

Penal Code section 273a, subdivision (1) is intended to protect children from situations in which the “probability of serious injury is great.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835, 159 Cal.Rptr. 771.) The risk need not be life threatening, as long as there are risks of great bodily harm. (People v. Caffero (1989) 207 Cal.App.3d 678, 683–684, 255 Cal.Rptr. 22.) One can be criminally culpable for violating the statute through a course of conduct as well as by a specific act. (People v. Sheffield, supra, 168 Cal.App.3d at p. 167, 214 Cal.Rptr. 40; People v. Ewing, supra, 72 Cal.App.3d 714, 717, 140 Cal.Rptr. 299.) Further, “[f]or the felony punishment there is no requirement that the actual result be great bodily injury.” (People v. Jaramillo, supra, 98 Cal.App.3d at p. 835, 159 Cal.Rptr. 771; People v. Hernandez (1980) 111 Cal.App.3d 888, 895, 168 Cal.Rptr. 898.)

Section 273a does not focus upon actual injury produced by abusive actions but “rather upon whether or not the attendant circumstances make great bodily injury likely. Occurrence of great bodily injury is not an element of the offense.” (People v. Hernandez (1980) 111 Cal.App.3d 888, 895, 168 Cal.Rptr. 898.) It is the likelihood of foreseeable injury, rather than whether such injury in fact occurs, that is relevant. (People v. Superior Court (Duval) (1988) 198 Cal.App.3d 1121, 1135, 244 Cal.Rptr. 522.) The statute is intended to protect children from situations in which the “probability of serious injury is great.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835, 159 Cal.Rptr. 771.)

The language of the statute sets out several ways in which it can be violated: by a person who (1) willfully and directly inflicts “unjustifiable physical pain or mental suffering” upon the child, (2) willfully “permits” the infliction of such pain or suffering or injury to the child's “person or health,” or (3) having the care or custody of the child, willfully places or permits the child to be placed “in such situation that its person or health is endangered, ...” (People v. Vargas (1988) 204 Cal.App.3d 1455, 1465, 251

Section 273a, subdivision (1) requires that “defendant's conduct must amount to a reckless, gross, or culpable departure from the ordinary standard of due care; it must be such a departure from what would be conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life.... [¶] [M]ere inattention or mistake in judgment is insufficient to support a criminal conviction.” (People v. Peabody (1975) 46 Cal.App.3d 43, 48–49, 119 Cal.Rptr. 780; People v. Hernandez, supra, 111 Cal.App.3d 888, 895, 168 Cal.Rptr. 898.) The term “willful” does not require intent to injure the child, but “ ‘implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.’ ” (People v. Atkins (1975) 53 Cal.App.3d 348, 358, 125 Cal.Rptr. 855; People v. Pointer (1984) 151 Cal.App.3d 1128, 1134, 199 Cal.Rptr. 357.)

Examples

Dirty house Guns in house Drugs in house People v. Odom (1991) 226 Cal.App.3d 1028.)

Hearsay

Evidence Code section 1360

(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply: (1) The statement is not otherwise admissible by statute or court rule.

(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.

(3) The child either:

(A) Testifies at the proceedings.

(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.

(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement. (c) For purposes of this section, “child abuse” means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and “child neglect” means any of the acts described in Section 11165.2 of the Penal Code.