Is Child Endangerment a Felony in California? Penal Code 273a Explained

Q: Is child endangerment a felony or a misdemeanor in California?

It can be either. Under Penal Code section 273a, conduct under circumstances likely to produce great bodily harm or death is a wobbler that can be filed as a felony or a misdemeanor, and conduct that was not likely to produce great bodily harm is a misdemeanor. The prosecutor decides the initial filing, and the court can reduce a felony wobbler to a misdemeanor under Penal Code section 17, subdivision (b).

Q: Does the child have to be injured for a child endangerment charge?

No. The statute punishes placing a child in a situation where the child's person or health is endangered, so no injury is required. The prosecutor must still prove that the danger was real and, for a felony, that great bodily harm or death was likely.

Q: Can I be charged with child endangerment for a DUI with my child in the car?

Yes. A DUI with a child under 14 in the vehicle carries an enhancement under Vehicle Code section 23572, and prosecutors frequently add a separate count under Penal Code section 273a. Whether it is filed as a felony usually depends on the blood alcohol level, the driving, and whether there was a collision.

Q: Will a child endangerment charge affect my custody case?

Almost always, at least temporarily. A criminal protective order under Penal Code section 136.2 can limit contact with the child while the case is pending, and the family court must consider the allegations under Family Code section 3011. A conviction or a domestic violence finding can trigger the presumption in Family Code section 3044. Coordinating the criminal defense with the custody case is essential.

Q: Is child endangerment eligible for diversion?

Sometimes. A misdemeanor charge under subdivision (b) is not on the exclusion list in Penal Code section 1001.95, so judicial diversion may be available, and mental health diversion under Penal Code section 1001.36 can apply to both misdemeanors and felonies where a qualifying condition contributed to the conduct. Eligibility is decided by the judge, and prosecutors often object in cases involving children.

Q: What is criminal negligence in a child endangerment case?

A gross departure from ordinary care. Under People v. Valdez (2002) 27 Cal.4th 778, the prosecutor must prove that a reasonable person would have known the conduct created a high risk of death or great bodily harm, and that the conduct was so reckless it showed disregard for human life. Ordinary carelessness or a momentary lapse is not enough.

Daniel Gramling, Esq.

4 minutes ago

12 min read

The short answer: Child endangerment under Penal Code section 273a is a wobbler when the conduct happened under circumstances likely to produce great bodily harm or death, meaning the prosecutor can file it as a felony carrying state prison or as a misdemeanor. When the circumstances were not likely to produce great bodily harm or death, it is a misdemeanor. The charge does not require that the child was actually hurt, which is why it shows up in DUI cases with a child in the car, domestic violence cases where a child was in the room, drug cases where a child was in the home, and cases of a child left alone. The defense usually turns on whether the risk was real and whether your conduct was criminally negligent rather than a mistake.

Why this guide exists. Parents charged under Penal Code section 273a in Riverside, San Bernardino, Fontana, Moreno Valley, Ontario, or Pomona are often facing a criminal case, a Child Protective Services investigation, and a family court custody fight at the same time. This guide explains the elements the prosecutor must prove beyond a reasonable doubt, the defenses that work, the penalty ranges, and the collateral consequences, and it links to our related guides on domestic violence and custody and DUI defense.

What Is Child Endangerment Under Penal Code 273a?

Four ways to commit the offense. Penal Code section 273a reaches anyone who willfully causes or permits a child to suffer unjustifiable physical pain or mental suffering, who willfully inflicts unjustifiable pain or suffering on a child, who has care or custody of a child and willfully causes or permits the child's person or health to be injured, or who has care or custody of a child and willfully causes or permits the child to be placed in a situation where the child's person or health is endangered. The child does not have to be your own, and you do not have to be a parent; a babysitter, a boyfriend living in the home, or a relative watching the child for the afternoon can be charged.

Felony versus misdemeanor. Subdivision (a) applies when the conduct occurred under circumstances or conditions likely to produce great bodily harm or death, and it is a wobbler punishable by up to one year in county jail or by two, four, or six years in state prison. Subdivision (b) applies when the circumstances were not likely to produce great bodily harm or death, and it is a misdemeanor punishable by up to six months in county jail. The difference between the two is the risk, not the result, so a child who was never hurt can still support a felony filing if the situation was dangerous enough.

Related but different statutes. Corporal punishment that leaves a traumatic condition is charged under Penal Code section 273d. Violence against a spouse or partner in front of a child is usually charged under Penal Code section 273.5 or Penal Code section 243, subdivision (e)(1), with a Penal Code section 273a count added; see our guides on corporal injury under Penal Code 273.5 and domestic battery under Penal Code 243(e)(1). Driving under the influence with a child under 14 in the car carries its own enhancement under Vehicle Code section 23572, and prosecutors often add a child endangerment count on top of it.

What the Prosecutor Must Prove Beyond a Reasonable Doubt

The elements of felony child endangerment. For a felony under subdivision (a), following the pattern instruction in CALCRIM 821, the prosecutor must prove (1) that you willfully inflicted unjustifiable physical pain or mental suffering on a child, or willfully caused or permitted a child to suffer it, or, while having care or custody of a child, willfully caused or permitted the child's person or health to be injured or the child to be placed in a situation where the child's person or health was endangered; (2) that you did so under circumstances or conditions likely to produce great bodily harm or death; and (3) that you were criminally negligent when you caused or permitted the child to suffer, be injured, or be endangered, or, where the theory is that you inflicted pain or suffering directly, that you acted willfully. If the prosecutor relies on the care or custody theories, a fourth element is that you in fact had care or custody of the child.

The misdemeanor elements. For a misdemeanor under subdivision (b), following CALCRIM 823, the elements are the same except that the prosecutor does not have to prove that the circumstances were likely to produce great bodily harm or death. The misdemeanor is a lesser included offense of the felony, so a jury that finds the risk was not that serious can convict of the misdemeanor instead.

Criminal negligence is the real battleground. For the indirect theories, causing or permitting a child to be endangered, People v. Valdez (2002) 27 Cal.4th 778 holds that the required mental state is criminal negligence measured objectively. Under Walker v. Superior Court (1988) 47 Cal.3d 112 criminal negligence means conduct that is so reckless that it amounts to a gross departure from what an ordinarily careful person would do in the same situation, a disregard for human life or indifference to the consequences. Ordinary carelessness, inattention, or a mistake in judgment is not enough. For the direct infliction theory, People v. Sargent (1999) 19 Cal.4th 1206 holds that the prosecutor need only prove a willful act, not criminal negligence.

Great bodily harm means significant injury. The prosecutor does not have to prove that great bodily harm actually occurred, only that the circumstances were likely to produce it. Great bodily harm means significant or substantial physical injury, more than minor or moderate harm. This is where most felony filings are fought: was a loaded, unsecured handgun in a nightstand a likely source of significant injury, or was it a locked closet the child could not reach.

How These Cases Usually Arise in Riverside and San Bernardino County

DUI with a child passenger. A traffic stop on the 10, the 60, the 91, or the 215 with a child in the back seat produces both a DUI count and a Penal Code section 273a count. Whether the endangerment count is filed as a felony often depends on the blood alcohol level, the driving, and whether there was a collision. Our guides to what happens after a DUI arrest and DUI in Orange County cover the DUI side.

Domestic violence in the child's presence. When officers respond to a domestic call in Fontana or Moreno Valley and a child was in the room, the report usually notes it, and the filing deputy often adds an endangerment count. Courts have upheld endangerment convictions where a child was placed at risk during a violent episode, for example People v. Burton (2006) 143 Cal.App.4th 447, but the prosecutor still has to prove that the child was actually placed in a dangerous situation, not merely present in the house. Read our guide to how a domestic violence arrest affects custody for the family court side.

Drugs in the home. Accessible drugs, drug paraphernalia, or manufacturing chemicals in a home with children are a frequent basis for felony filings, as in People v. Odom (1991) 226 Cal.App.3d 1028, where a methamphetamine lab in the home supported the conviction. Simple possession in a locked container with no access by the child is a very different case. See our guide to drug possession charges.

Children left alone, unsecured firearms, and unsafe conditions. A child left in a hot car in a Riverside parking lot, a toddler found wandering near a busy street in Ontario, a loaded firearm accessible to a child, or a home with no working utilities and spoiled food are all charged under this section. California also has separate firearm storage statutes, and the facts drive whether the filing is a misdemeanor or a felony.

Defenses to a Child Endangerment Charge

The situation was not actually dangerous. The prosecutor must prove that the child's person or health was endangered, and for a felony that great bodily harm or death was likely. Photographs, home inspection results, medical records showing no injury, and expert testimony about actual risk are used to show the situation was safe or the risk was speculative. Many felony filings are reduced to misdemeanors or dismissed on this ground alone.

Ordinary negligence, not criminal negligence. Under People v. Valdez (2002) 27 Cal.4th 778 and Walker v. Superior Court (1988) 47 Cal.3d 112, a lapse that an ordinary parent might make is not a crime. Losing track of a child at a park for a few minutes, or a babysitter falling asleep, is negligence, not a gross departure from reasonable care. The line is drawn by the jury, which is why the facts of the specific incident matter more than the label.

No care or custody. For the theories that require care or custody, a person who was merely present, such as a guest in the home or a second adult who was not responsible for the child, may not fit the statute. The prosecutor must prove the relationship, not assume it.

Reasonable discipline. A parent has a right to impose reasonable, age-appropriate discipline. Discipline crosses into a crime only when it is excessive under the circumstances or causes a traumatic condition. Where the charge is based on physical discipline, the question is whether the force was reasonable, and the medical evidence is central.

False or exaggerated accusations. Child endangerment allegations often arise in the middle of a custody dispute or a breakup. A report from an ex-partner during a custody fight is examined for motive, timing, and corroboration, and family court filings, text messages, and prior police contacts are compared against the story. Our guides to what makes a criminal case weak and whether police can use your text messages explain how that evidence cuts both ways.

Unlawful search or statements. Many cases begin with a welfare check that turns into a search of the home. If officers entered without a warrant, consent, or a true emergency, the evidence can be suppressed through a motion under Penal Code section 1538.5; see our guide to 1538.5 motions. Statements made to officers or social workers before any advisement are examined under Miranda v. Arizona (1966) 384 U.S. 436 and for voluntariness, and parents should read do not say this to police before any interview.

Penalties and Sentencing for Child Endangerment

Misdemeanor and felony ranges. A misdemeanor under subdivision (b) carries up to six months in county jail, and a felony under subdivision (a) carries two, four, or six years in state prison, with a misdemeanor alternative of up to one year in county jail. Because the felony is a wobbler, the court can reduce it to a misdemeanor under Penal Code section 17, subdivision (b), at sentencing or later; see our guide to reducing a felony to a misdemeanor. If the child actually suffered great bodily injury, an enhancement under Penal Code section 12022.7 adds prison time and makes the conviction a strike.

Mandatory probation terms. When probation is granted, subdivision (c) of Penal Code section 273a requires a minimum probation period of 48 months, a criminal protective order under Penal Code section 136.2 protecting the child, which may include residence exclusion or stay-away conditions, and successful completion of a one-year child abuser's treatment counseling program, plus abstention from alcohol or drugs where the offense involved them. The court can strike or modify these conditions in the interests of justice with reasons stated on the record, which is a negotiation point that experienced counsel raises early. The protective order is issued on form CR-160 and can limit your contact with your own child while the case is pending.

Diversion and alternatives. Felony endangerment is not eligible for misdemeanor diversion, but a misdemeanor count under subdivision (b) is not on the exclusion list in Penal Code section 1001.95, so judicial diversion may be available in Riverside and San Bernardino County courts; see our guide to misdemeanor diversion. Where a mental health condition contributed, Penal Code section 1001.36 diversion can apply to both misdemeanors and felonies; see our guide to mental health diversion. Our guide to how sentencing works covers the hearing itself.

Collateral Consequences: CPS, Custody, Firearms, and Immigration

Child Protective Services. An arrest for child endangerment almost always generates a referral to the county child welfare agency. A social worker may open an investigation, seek a safety plan, or file a dependency petition in juvenile court under Welfare and Institutions Code section 300. Dependency court runs on its own timeline with a lower burden of proof than the criminal case. Statements to the social worker can be used in the criminal case, so coordinate both matters through counsel.

Custody and the family court. In a divorce or parentage case, the family court must consider any history of abuse in deciding custody under Family Code section 3011, and a finding of domestic violence against the other parent triggers the presumption against custody in Family Code section 3044. A criminal protective order naming the child will control over a family court visitation order until it is modified, and courts often order supervised visitation while the criminal case is pending; see our guide to supervised visitation in California. Our child custody practice handles the family court side alongside the criminal defense.

Firearms, immigration, and employment. A felony conviction carries a lifetime California firearm ban under Penal Code section 29800. For non-citizens, a conviction for a crime of child abuse, neglect, or abandonment is a ground of removal, and Padilla v. Kentucky (2010) 559 U.S. 356 and Penal Code section 1016.3 require defense counsel to advise on those consequences before any plea. A substantiated report can also place your name in the Child Abuse Central Index, which affects licensing for teachers, nurses, foster parents, and childcare workers. After probation, a dismissal under Penal Code section 1203.4 is generally available; see our guide to expungement.

Where These Cases Are Heard and What to Do First

Courthouses. In Riverside County, endangerment cases from Riverside, Moreno Valley, and Corona are generally heard at the Riverside Hall of Justice, southwest county cases at the Southwest Justice Center in Murrieta, and desert cases at the Larson Justice Center in Indio. In San Bernardino County, cases go to the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Fontana courthouse, or the Victorville courthouse depending on the city. In Los Angeles County, cases from Pomona go to the Pomona courthouse and cases from the Valley to Van Nuys. Confirm the assignment on the court's website. Our guides to arraignment in Riverside County and what prosecutors look at before filing explain the first weeks.

The first steps. Do not give a statement to police or the social worker without counsel. Do not contact the other parent about the allegations if a protective order is in place, because that is a separate crime under Penal Code section 273.6; see our guide to violating a restraining order. Gather photographs of the home, medical records for the child, and the names of witnesses who saw the situation. Enroll in a parenting class early where advised, because prosecutors and judges in the Inland Empire respond to documented steps.

Frequently Asked Questions

Is child endangerment a felony or a misdemeanor in California?

It can be either. Under Penal Code section 273a, conduct under circumstances likely to produce great bodily harm or death is a wobbler that can be filed as a felony or a misdemeanor, and conduct that was not likely to produce great bodily harm is a misdemeanor. The prosecutor decides the initial filing, and the court can reduce a felony wobbler to a misdemeanor under Penal Code section 17, subdivision (b).

Does the child have to be injured for a child endangerment charge?

No. The statute punishes placing a child in a situation where the child's person or health is endangered, so no injury is required. The prosecutor must still prove that the danger was real and, for a felony, that great bodily harm or death was likely.

Can I be charged with child endangerment for a DUI with my child in the car?

Yes. A DUI with a child under 14 in the vehicle carries an enhancement under Vehicle Code section 23572, and prosecutors frequently add a separate count under Penal Code section 273a. Whether it is filed as a felony usually depends on the blood alcohol level, the driving, and whether there was a collision.

Will a child endangerment charge affect my custody case?

Almost always, at least temporarily. A criminal protective order under Penal Code section 136.2 can limit contact with the child while the case is pending, and the family court must consider the allegations under Family Code section 3011. A conviction or a domestic violence finding can trigger the presumption in Family Code section 3044. Coordinating the criminal defense with the custody case is essential.

Is child endangerment eligible for diversion?

Sometimes. A misdemeanor charge under subdivision (b) is not on the exclusion list in Penal Code section 1001.95, so judicial diversion may be available, and mental health diversion under Penal Code section 1001.36 can apply to both misdemeanors and felonies where a qualifying condition contributed to the conduct. Eligibility is decided by the judge, and prosecutors often object in cases involving children.

What is criminal negligence in a child endangerment case?

A gross departure from ordinary care. Under People v. Valdez (2002) 27 Cal.4th 778, the prosecutor must prove that a reasonable person would have known the conduct created a high risk of death or great bodily harm, and that the conduct was so reckless it showed disregard for human life. Ordinary carelessness or a momentary lapse is not enough.

Talk to a Child Endangerment Defense Lawyer

Gramling Law Group defends child endangerment and domestic violence cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Pomona and Van Nuys courthouses, and courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California, and handles the related custody and protective order proceedings in family court. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so you know the cost before the first hearing. Call (909) 654-4575 or contact us through this website for a consultation.

This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.