California Child Abuse Laws
California Penal Code 273d pc punishes corporal injury or punishment on a child…more commonly referred to as child abuse. Although the umbrella of California child abuse laws encompasses neglect as well as physical, sexual, and emotional abuse, this law specifically deals with physical abuse directed at a minor.
Penal Code 273d pc is a “wobbler”, which means that depending on (1) the facts of your specific case, and (2) your criminal history, it may be charged as a misdemeanor or a felony.1
While valid claims of corporal injury or punishment on a child are obviously a serious matter, a false allegation or misleading evidence can destroy your reputation, family, career, and freedom. Similarly, one moment of weakness…exaggerated simply because of the difference in size between you and your child…shouldn’t result in these devastating consequences.
In this article, I try to provide a comprehensive guide to understanding child abuse law, and the defenses that are applicable to it, by addressing the following topics:
1. What is Child Abuse under California Penal Code 273d PC?
2. How Does the Prosecutor Prove that I am Guilty of Child Abuse?
3. Prior Acts of Child Abuse or Domestic Violence May be Used Against You
4. Child Abuse and Related Offenses
5. Penalties, Punishment, and Sentencing for California Penal Code 273d — Child Abuse
6. What are the Defenses to Child Abuse?
1. What is Child Abuse under California Penal Code 273d PC?
California Penal Code 273d law defines child abuse as the willful infliction of a cruel or inhuman corporal punishment or any injury that results in a “traumatic condition”.4
Simply put, this means that you may be charged with California child abuse if you intentionally harm a child, and it results in a visible or internal injury. You don’t have to cause the child great bodily injury or harm…even a minor injury could trigger this charge.
Examples of corporal injury or punishment on a child include (but are by no means limited to):
■hitting, punching, slapping, or kicking a child,
■pushing a child,
■shaking a child,
■choking a child,
■burning a child, and
■throwing an object at a child.
“Spanking” a child is typically excluded from California child abuse law, as parents do maintain a right to discipline their children “reasonably” in the manner they see fit…a right which will be further explained in the “What are the Defenses to Child Abuse?” section of this article.
The bottom line is you will likely be prosecuted (although not necessarily convicted) for corporal punishment on a child if you commit any physical act that results in injury.
2. How Does the Prosecutor Prove that I am Guilty of California Child Abuse?
In order to obtain a conviction under California Penal Code pc 273d, the prosecutor must prove the following two facts (otherwise known as “elements of the crime”):
1.that you willfully (intentionally) inflicted cruel or inhuman physical punishment or an injury on a child, and
1.that the infliction of the punishment or injury resulted in a traumatic condition.
So what does this actually mean? Let’s flush out some of these terms to better understand their meanings.
Willful means with a willingness to commit an act. As long as you intend the act, the consequences are irrelevant.5 As a result, if, for example, you grab your son’s arm…and inadvertently pull it out of the socket…grabbing the arm will be considered a willful act.
Cruel or inhuman punishment
It is interesting that “cruel or inhuman” isn’t defined in Penal Code 273d pc…even though it’s the critical point at issue. In any event, using common definitions taken from Webster’s dictionary, “cruel” means disposed to inflict pain in a vindictive manner. “Inhuman” means lacking mercy, pity, kindness, or tenderness.6
Cruel and unusual punishment on a child (for purposes of comparison) is commonly described as that which shocks the moral conscience of the community.
“Traumatic condition” means a wound or internal or external injury to the child (whether of a minor or serious nature) caused by physical force. Although “traumatic” seems to imply “dramatic”, that’s not the case…even something as minor as a scratch qualifies as a traumatic condition.
Unfortunately, there really is no clear cut definition of what qualifies as child abuse under California Penal Code 273d PC…the jury must evaluate the circumstances surrounding the incident to determine whether the act constituted abuse.
The prosecutor will make a similar evaluation…less serious acts/injuries will likely be charged as misdemeanors, and more serious acts/injuries will be charged as felonies.
3. Prior Acts of Child Abuse or Domestic Violence May be Used Against You
California law has long held that the court will always exclude evidence relating to prior criminal offenses or misconduct from your pending case. This rule exists to protect you so that the jury doesn’t unfairly convict you based on conduct unrelated to your alleged offense. Permitting such evidence is considered overly prejudicial and is, therefore, not permitted.
That said, California child abuse law under Penal Code 273d pc marks an exception to this rule.8 Not only are prior acts of corporal injury or punishment on a child admissible against you in a child abuse prosecution…but it isn’t even necessary that the prior acts resulted in prior convictions.
This means that the judge may allow the prosecutor to introduce any prior allegations that you previously engaged in acts of corporal injury or punishment on a child, even if you were never convicted of those allegations.
These prior alleged acts don’t have to involve the same alleged victim or circumstances, or have any other similarities to your pending case…that is, other than the fact that you were previously accused of abusing a child.
However, before the judge will permit the prosecutor to allow this type of evidence, he/she will conduct a hearing to consider
1.whether the proposed evidence will unduly prejudice the jury,
1.whether there is any corroborating evidence, and
1.how much time has elapsed between the prior acts and the pending charges.
Other acts of domestic violence
California domestic violence law marks the second exception to the rule that prior criminal acts are excluded from pending criminal cases.10
While we typically think of domestic violence as violence that takes place between spouses or boy/girlfriends, domestic violence laws are actually much more inclusive. Acts of domestic violence also include alleged abusive acts against
1.any child who “regularly resides” with you, and
1.any child who formerly “regularly resided” with you.11
So what does this mean for a child abuse prosecution? It means that if you’re accused of Penal Code 273d corporal injury to a child…and the child you allegedly abused falls into one of these three categories…the court may decide that your charges also fall under California domestic violence law.
As a result, the court may allow the prosecution to introduce evidence of any prior acts of domestic violence…even if committed against an adult. The rationale is that the California Evidence Code permits any acts of domestic violence as tending to show your “propensity” towards violence in general.12
So much for innocent until proven guilty…
Here’s an example to better illustrate this rule:
Suppose you are being prosecuted for inflicting corporal injury on a child. This charge arose out of an incident where you allegedly hit your boyfriend’s daughter who lives with you. During the prosecutor’s investigation, he discovered that you had been arrested for throwing a phone at your ex-husband 3 years ago and convicted of punching him 5 years ago.
If the prosecutor can convince the judge that your previous acts reveal the fact that you are predisposed to violence, he may be able to introduce evidence of one or both of those offenses.
Although there is enormous political and social pressure to punish those charged with child abuse, skilled California child abuse defense lawyers know the most effective arguments to convince the court that such evidence is constitutionally unfair and, as a result, must be excluded.
In the event that the evidence of prior domestic violence does get introduced, the jury will be instructed that the prior acts by themselves are not sufficient to prove that you committed the pending alleged offense…they are simply additional evidence to consider when deliberating on the case.13
4. California Child Abuse and Related Offenses
As you can see, California child abuse law can go hand-in-hand with other domestic violence offenses. Penal Code 273d pc is commonly charged in connection with child endangerment and is closely connected to battery. Let us explain.
Child endangerment — California Penal Code 273a
Child endangerment (which may also be interchangeably referred to as child abuse), also deals with intentional harm to a child.14
The major difference between the two sections is that child endangerment doesn’t necessarily involve actual harm…it can be charged if there is simply the probability that harm will result. California child abuse laws, by contrast, require an actual corporal punishment and injury.15
Child endangerment may be filed together with a California Penal Code 273d allegation16 or charged independently.
Child endangerment cases are commonly filed where, for example, a mother knows that her child is being beaten by the child’s father or the mother’s boyfriend, yet does nothing to prevent it. Another common way to invite this charge is to have a child in the car when you are drunk driving.
Battery — California Penal Code 242–as a lesser offense to Child Abuse
Penal Code 242, simple battery17 (which is the unwanted willful use of force or violence upon another, no matter how slight) is a lesser offense necessarily included in child abuse.18 A lesser offense is “necessarily included” if it is impossible to commit the greater offense (in this case, child abuse) without necessarily committing the lesser offense.
This means that if there is evidence to support the fact that you intentionally inflicted some physical force against a child…but that it didn’t
1.rise to the level of “cruel or inhuman” punishment, or
1.result in a traumatic condition (spitting on your child, for example, would not result in injury),
the judge must instruct the jury that it may alternatively convict you of misdemeanor simple battery.
5. Penalties, Punishment, and Sentencing for California Penal Code 273d — Child Abuse
As previously stated, Penal Code 273d pc corporal injury or punishment on a child is a wobbler, which means it can be prosecuted as a misdemeanor or a felony.
If prosecuted as a misdemeanor, it carries a maximum sentence of one-year in a county jail and a $6,000 fine. If prosecuted as a felony, it carries a California State Prison sentence of two, four, or six years and the same maximum fine.19
Since the 1980′s, the penalties under California child abuse laws have increased substantially. In 1980, the prison term for a child abuse conviction changed from “16 months, or two or three years” to “two, three, or four years”. In 1984 it increased to the current “two, four, or six years”. And in 1987, the maximum $6,000 fine was added to the potential penalties.
Similarly, in 1987, the legislature added an additional four-year prison enhancement if you have a prior conviction for the same child abuse offense, provided that you served your sentence within a ten-year period.20
If, however, the prior conviction was more than ten years prior, and you remained free from prison and any other felony convictions, the judge will not impose an additional sentence.
Probation is typically imposed in connection with a corporal punishment causing injury on a child conviction. Some of the conditions aim to punish the offender, others to rehabilitate.
The judge will sentence you to probation for a minimum of three years. During that time, the judge will:
■issue a criminal court protective order and, if appropriate, a residence exclusion and/or stay away order,
■order you to attend and complete a minimum one-year child abuser’s treatment counseling program, and
■order your probation officer to conduct random drug tests if you were under the influence of drugs and/or alcohol at the time of the alleged offense.21
Your failure to complete any of these probation requirements may result in (1) a court-ordered bench warrant, and/or (2) a probation violation (subjecting you to an increased jail or prison sentence).
6. What are the Defenses to Penal Code 273d Child Abuse?
While California’s child abuse laws aim to protect children, our justice system is also designed to vindicate those who get wrongfully accused. Below are some of the most common legal defenses that an experienced California criminal defense attorney may assert against a corporal injury or punishment on a child charge:
False allegations of child abuse
This is, perhaps, the most common defense that California criminal defense attorneys pursue as to charges involving child abuse, domestic violence, and Penal Code 288 lewd acts with a minor. This is because all of these charges may (but don’t necessarily) involve people to whom we are emotionally involved.
As a result, someone may accuse you of child abuse based on his/her own ulterior motives that arose out of anger, jealousy, revenge, or a desire to be in control. This is typically seen in connection with custody battles or with children who want to “punish” their parents or their parent’s boy/girlfriend.
It’s very easy for someone to make false allegations of inflicting an injury when, in reality, it was either self-inflicted or inflicted by someone else.
This is one area in particular where having a seasoned child abuse defense attorney will prove critical. Only a lawyer who routinely defends these types of cases will know the types of questions to ask, the types of investigations to pursue, and the types of evidence that will effectively highlight the deficiencies in the prosecutor’s case.
Injuries caused by things other than child abuse
Kids have accidents – period. They fall, bump into things, wrestle with each other, wrestle with you, get in fights with each other, and play contact sports.
It often happens that even a well-meaning person could mistake cuts, scrapes, bruises, or other innocent injuries for abuse…and in turn complain to the authorities that you engaged in Penal Code 273d child abuse.
Veteran California criminal defense attorneys frequently work with doctors and forensic medical examiners who independently evaluate the alleged injuries. If, after conducting a thorough exam, the doctor believes that you are being unfairly prosecuted based on misleading evidence, he/she will testify accordingly.
Parent’s right to discipline
As previously mentioned, parents do have the right to discipline their children physically (otherwise known as corporal punishment on a child)…so long as the discipline is reasonable and causes no bodily injury.22
As a result, “spanking” (with your hand or an object) when used as a means of disciplining a child is not considered child abuse under California law unless it becomes unreasonable or excessive.23
Each case of alleged child abuse will therefore necessarily involve two questions: (1) Was the punishment “necessary” or warranted? and (2) Was it reasonable or excessive?24
If your California child abuse defense lawyer can convince the prosecutor, judge and/or jury that the alleged corporal punishment was justified as a reasonable means of discipline, you must be acquitted of this charge.
The injury is a result of an accident
California child abuse law doesn’t punish genuine accidents, so long as the accident didn’t arise out of reckless or aggressive behavior. Examples of genuine accidents include:
■practicing your baseball swing when your daughter walks up behind you — without your knowledge — getting hit with the bat
■slamming the door in anger, not realizing that your toddler’s hand is in the door jam
■swinging your son in circles by his arms and accidentally pulling his arm out of the socket
Using the last example, if, in anger, you willfully grabbed your son’s arm and you accidentally pulled it out of the socket, the “accident” would not serve as a defense to child abuse. As previously stated, because you willfully grabbed his arm, the consequence of the result is irrelevant.
Another example is a little different. If your son intervenes in a physical argument that you are engaged in with his mother…and he’s accidentally hit in the altercation…his injury is still the result of an accident.
It may seem counterintuitive to acknowledge involvement in a domestic dispute, but pleading to a domestic abuse charge will likely carry a lesser sentence …and a lesser stigma.
It comes down to this — if you don’t intentionally commit an act of physical punishment or force, you must be acquitted of this charge.
1. California Penal Code 273d — Corporal punishment or injury of child; felony; punishment; enhancement for prior conviction; conditions of probation “child abuse”. (“(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 in the state prison 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. Penal Code 273.5 punishes the willful infliction of corporal injury on a current or former spouse, cohabitant, mother or father of one’s child or dating partner.
3. Penal Code 243(e)(1) punishes a person who commits a battery on a current or former spouse, cohabitant, fiancé, dating partner or parent of one’s child.
4. California Jury Instructions – Criminal. CALJIC 9.36 Child abuse. (“Every person who willfully inflicts upon any child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a violation of [California] Penal Code section 273d, a crime. In order to prove this crime, each of the following elements must be proved: (1) A person willfully inflicted cruel or inhuman punishment or an injury upon the body of a child; and (2) The infliction of this punishment or this injury resulted in a traumatic condition.”)
5. California Penal Code 7 — Words and phrases. (“The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: 1. The word “willfully,” when applied to the intent with which an act is done or omitted, 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.”)
6. People v. Jackson, (1984) 198 Cal.Rptr. 463, 465 (“Webster’s Dictionary, supra, defines “cruel” as “1a: disposed to inflict pain esp. in a wanton, insensate or vindictive manner … b: rapacious, ravening: given to killing and mangling or to tormenting prey … 2a: … causing or conducive to injury, grief, or pain … 3: severe, distressing: extremely painful …” The same authority defines “inhuman” as “1a: lacking the qualities of mercy, pity, kindness, or tenderness: cruel, barbarous, savage … c: not worthy of or conforming to the needs of human beings …”")
7. See California Evidence Codes 1101 and 352. California Evidence Code 1101 — Evidence of character to prove conduct. (“(a) Except as provided in this section and in [California Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”)
California Evidence Code 352 — Discretion of court to exclude evidence. (“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”) Italics added.
8. California Evidence Code 1109 — Evidence of defendant’s other acts of domestic violence. (“(3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to [California Evidence Code] Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant’s commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101.”)
9. See same.
10. See same. (“(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by [California Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to Section 352…(d) As used in this section: (3) “Domestic violence” has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, “domestic violence” has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.”)
11. See same. See also California Family Code 6211 — Domestic violence. (“”Domestic violence” is abuse perpetrated against any of the following persons: (b) A cohabitant or former cohabitant, as defined in Section 6209…(e) A child of a party…”)
See also California Family Code 6209 — Cohabitant. (“”Cohabitant” means a person who regularly resides in the household. “Former cohabitant” means a person who formerly regularly resided in the household.”)
12. People v. Dallas, (2008) 165 Cal.App.4th 940, 952 (“…because the purpose of [California] Evidence Code section 1109 is to admit propensity evidence, and because “[t]he propensity to commit violence, whether on a partner, or upon a child, is the same,” evidence of acts of either type of abuse should be admissible in a prosecution for the other.”) The court then engages in a detailed evaluation of the three previously listed codes (Cal. Evid. Code 1109 and Cal. Family Code sections 6211 and 6209) to justify this proposition as it applies to a child abuse prosecution under California Penal Code 273d.
13. California Jury Instructions – Criminal. CALJIC 2.50.04 Evidence of other child abuse offenses. (“Evidence has been introduced for the purpose of showing that the defendant committed an offense of child abuse, namely a violation of [California] Penal Code section 273d, on [an] [one or more] occasion[s] other than that charged in this case. If you find that the defendant committed a prior violation of [California] Penal Code section 273d, you may, but are not required to, infer that the defendant had a disposition to commit [another] offense[s] involving child abuse. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused.
However, if you find by a preponderance of the evidence that the defendant committed [a] prior [an] offense[s] of child abuse, this finding is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.
[[Unless you are otherwise instructed, you] [You] must not consider this evidence for any other purpose.]
14. California Penal Code 273a — Willful harm or injury to child; endangering person or health; punishment; conditions of probation. (“(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 [such as in a car with a driver who is drunk driving], shall be punished by imprisonment in a county jail not exceeding one year, or in the [California] 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.”)
15. People v. Cockburn, (2003) 109 Cal.App.4th 1151, 1159 (“”Violation of [California Penal Code] section 273a, subdivision (a) ‘ “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.”… Section 273a [, subdivision (a)] is”intended to protect a child from an abusive situation in which the probability of serious injury is great.” “[T]here is no requirement that the actual result be great bodily injury.” (People v. Valdez (2002) 27 Cal.4th 778, 784 [118 Cal.Rptr.2d 3, 42 P.3d 511].) Section 273d, however, requires the defendant to inflict a cruel or inhuman corporal punishment or injury upon a child and the actual result is an injury resulting in a traumatic condition.”)
16. People v. Lofink, (1988) 206 Cal.App.3d 161, 166 (“[California Evidence Code] Section 954 sets forth the general rule that defendants may be charged with and convicted of multiple offenses based on a single act or an indivisible course of conduct. It provides in relevant part: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense. … The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged …” There is no doubt Lofink was properly charged with corporal punishment and willful cruelty to a child in counts I and II for the facial injuries Nathan sustained on September 10 and with the same charges in counts III and IV for the bone fractures Nathan sustained between June 27 and September 10. These charges constitute “different statements of the same offense” and are authorized under [California Penal Code] section 954. Lofink’s conviction of both offenses for his act or course of conduct is also authorized since section 954 states a defendant may be convicted of “any number of the offenses charged.”FN5
FN5 Multiple convictions for a single act or indivisible course of conduct have frequently been affirmed.”)
17. California penal Code 242 defines simple battery as “any willful and unlawful use of force or violence on the person of another.”
18. People v. Stewart, (1961) 188 Cal.App.2d 88, 90 (“There can be no doubt that the elements of battery were included in the charge of violation of [California Penal Code] section 273d [child abuse], as pleaded in the information. It would have been impossible for appellant to make an unlawful assault and inflict a corporal injury resulting in a traumatic condition upon his son without the unlawful use of force or violence upon his person.”)
19. California Penal Code 273d (child abuse), endnote 1 above.
20. California Penal Code 273d (child abuse). (“(b) Any person who is found guilty of violating subdivision (a) shall receive a four-year enhancement for a prior conviction of that offense provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction.”)
21. California Penal Code 273d (child abuse). (“(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 36 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. 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 [California] Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports. [Failure to comply may result in the court issuing a bench warrant for your arrest.] (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.”)
22.California Jury Instructions – Criminal. CALJIC 4.80 Parent’s Right to Discipline Child [Defense to child abuse under California Penal Code 273d]. (“It is lawful for a parent reasonably to discipline a child, and in doing so to administer reasonable punishment, including the infliction of reasonable corporal punishment. However, it is unlawful for a parent to inflict unjustifiable punishment upon a child. Corporal punishment is not justified and is therefore unlawful if the punishment was not reasonably necessary, or was excessive, under the circumstances. The defendant contends that [he] [she] was lawfully disciplining the child. The People have the burden of proving that the force applied to the child was unlawful, that is, not reasonably necessary or excessive, under the circumstances. If you have a reasonable doubt that unlawful force was applied, you must find the defendant not guilty. If you find that the use of force was not reasonably necessary or was excessive, you must determine what crime, if any, was committed in light of the other instructions.”)
See also 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.”)
23. See same. (“However, a parent who willfully inflicts unjustifiable punishment is not immune from either civil liability or criminal prosecution.”)
24. See same. (“Thus as these cases make clear, whether the corporal punishment falls within the parameters of a parent’s right to discipline [under California law] 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.”)
25. 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. (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.
273ab. Any person who, having the care or custody of a child who is under eight years of age, 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 effecting the applicability of subdivision (a) of Section 187 or Section 189.