The general public doesn’t typically think of child abuse crimes as domestic violence but if you’re accused of physically or emotionally abusing your child, or the child of your current or former spouse or lover, for example, then that’s exactly the criminal category it falls under.
In general, however, “active” child abuse involves the infliction of physical or mental suffering – typically through your own intentional acts – upon an individual younger than eighteen years old. That victim falls into the category of individuals for whom domestic violence (“DV”) laws were intended to protect when he or she currently lives with you or lived with you in the prior six months. This includes kids whose parents allegedly exceeded their rights to reasonably and justifiably punish them (typically, that’s anything beyond a spanking, including any use of an object that leaves visible marks).
Alternatively, a minor DV victim could simply be a child who was in the wrong place at the wrong time, such as an innocent bystander assaulted because he or she was in the house when the abuser broke in to attack the mother.
Finally, even accidental deaths, such as one that indirectly resulted from excessive punishment, can result in serious criminal charges with the potential for many years in prison, including a possible life sentence (see below).
State Statutes Regarding Domestic Violence – Child Abuse
California’s child abuse crimes that do not involve sexual abuse, abandonment, neglect or kidnapping are primarily codified at California Penal Code sections 273a through 273.75. As with most child abuse crimes, the District Attorney can choose to charge each alleged violation as a misdemeanor or a felony (therefore, these crimes are commonly known as “wobblers”).
One of the most common charges involving child abuse falls under California Penal Code section 273d, which covers any situation where you allegedly intentionally punish a child (whether it’s yours or not) in a “cruel or inhuman” manner that results in a “traumatic condition”.
Again, as with most crimes of this nature, the Los Angeles County District Attorney’s Office has the sole discretion to charge this either as a misdemeanor or felony, depending on various factors (e.g., the severity of the injury/ies; your prior convictions (if any), particularly for child abuse; etc.) See: https://codes.findlaw.com/ca/penal-code/pen-sect-273d.html.
Similarly, Penal Code section 273a(a)&(b) criminalizes the following acts:
you “unjustifiably” cause a child to endure psychological distress or physical suffering; and
you did so under circumstances that would probably cause serious injury; or
while having legal custody or otherwise lawfully caring for him or her, you intentionally caused him or her to endure psychological distress or physical suffering; or
while having legal custody or otherwise lawfully caring for him or her, you intentionally caused him or her injury.
An obviously far more egregious crime concerns the death of a child seven years old or younger while in your care/custody that results from punishment – specifically, the exertion of force so strong that any reasonable person would have known that it would probably cause the child serious injury. This crime falls under Penal Code section 273ab. See: https://codes.findlaw.com/ca/penal-code/pen-sect-273ab.html.
Convictions and Sentencing Terms for Domestic Violence – Child Abuse
As with DV cases involving adults, the punishments for child abuse increase accordingly with the severity of the victim’s injury.
Cruel/Inhuman Punishment Resulting in Serious Injury
As a wobbler offense, a Penal Code section 273a conviction will get you the following:
up to one year in county jail (misdemeanor or felony); or
two, four or six years in prison (if charged as a felony); or
formal probation for four years (misdemeanor or a non-prison felony);
stay-away order and a possible move-out order (probationary term);
one year of weekly child abuser’s counseling programs (probationary term); and
court fines and fees (same).
For a list of treatment programs sanctioned by the LA County Probation Department, see: http://file.lacounty.gov/SDSInter/probation/1018941_2017CAlist.pdf.
If convicted under Penal Code section 273d – again, cruel/inhuman punishment or injury resulting in a traumatic condition, you will receive the following punishment:
two, four or six years in prison (if charged as a felony); or
up to one year in county jail (if charged as a misdemeanor or felony);
a fine not to exceed $6,000 (same);
a fine and jail (same); or
a fine and prison (felonies only).
However, if you were previously convicted for this offense within the preceding ten years, you can expect a four-year-prison sentence enhancement. Pen. Code § 273d(b).
If you are fortunate enough to receive probation (which, again, can only happen if you are not sentenced to prison), then the terms will include the following:
minimum probationary period of 36 months;
a protective order to protect the child from additional violence or threats;
a possible stay-away order which would include banning you from the child’s home;
one year of a child abuser’s treatment counseling program;
abstention from using alcohol or drugs, substance abuse counseling, and random drug testing (if you were under the influence or alcohol or drugs at the time); and
restitution and/or court fines.
For a list of court-approved child abuser’s treatment programs in LA County, see: http://file.lacounty.gov/SDSInter/probation/1018941_2017CAlist.pdf.
Punishment Causing the Death of a Child Under Age Eight
Specifically, under California Penal Code section 273ab (see above), if a child seven years or younger is lawfully in your care or custody, and you assault that child with force that is likely to cause severe injury and you actually kill that child, then the court will sentence you for a state prison term of no less than 25 years up to life.
But if the same victim is rendered comatose or is permanently paralyzed, then you will receive a life sentence with possible parole. (California Penal Code section 273ab(b).)
Child Abuse Restraining Orders
If you are alleged to have committed child abuse – even if you haven’t been arrested or even charged for it – then you could be subjected to the following types of protective orders (sometimes called “protection” orders):
Emergency Protective Orders
Pursuant to California Family Code section 6250 & 6251, if a law enforcement officer reasonably believes that you pose an immediate threat of abuse to the child (based on a recent threat or allegation of abuse), then the officer can immediately request an EPO any time day or night from a judge. See: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=6250.
The EPO will last the lesser of five court days or seven calendar days. Alternatively, the judge can issue the EPO to prevent the reoccurrence of domestic violence/child abuse. See: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=6251.
Temporary Restraining Orders
An EPO can be extended by a temporary restraining order (“TRO”), or the complaining witness (e.g., the child’s mother) can go into court him/herself and request one from a judge, who will issue it – typically for 21 days – so long as there is some evidence that the child faces the danger of imminent harm if the TRO is not granted. See California Code of Civil Procedure section 527.6(d) at: https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-527-6.html.
Permanent Restraining Order
After the TRO is issued, or even if it’s denied, a second hearing will be scheduled where the court will consider extending the TRO into a semi-permanent protective order, or grant it in the first place. The term typically runs for three years but can be more, depending on the circumstances, and can take the form of a stay-away order or even a move-out order. See: https://www.courts.ca.gov/1260.htm.
Mandatory Reporting by Certain Third-Party Witnesses
Further complications for these types of cases result from state laws requiring certain personnel – such as teachers, medical professionals, social workers, and counselors – to automatically report to law enforcement authorities any suspicions they have, or purported evidence they’ve witnessed (such as bruises, cuts or burns) that indicate a child in their temporary care or custody has been the victim of child abuse.
Not reporting under these circumstances could cost them to temporarily or permanently lose their license. They could even be criminally prosecuted for a misdemeanor with potential punishment as much as six months in county jail in worst case scenarios.
Defenses to Domestic Violence – Child Abuse
If you are charged with child abuse that was likely to cause serious harm or even death (but did not actually cause death or even serious harm, for that matter), then the following are all viable defenses:
you did not act intentionally in causing the child unjustifiable physical/mental pain/suffering; or
at the time of the incident, he or she was not in your care or custody; or
if he or she was in your care or custody, you did not intentionally injure the child; and/or
the circumstances were not such that would likely cause serious harm or death; and
at the time, you were not acting in a criminally negligent manner.
See California Criminal Jury Instructions (“CALCRIM”) number 821 (“Child Abuse Likely to Produce Great Bodily Harm or Death”) at: https://www.justia.com/criminal/docs/calcrim/800/821/.
If the alleged abuse concerns discipling your child, then you can utilize the following defenses:
you did not act intentionally (e.g., the incident was the result of an accident);
the incident did not actually result in a traumatic injury; and/or
you did not act unreasonably when you disciplined your child.
See CALCRIM number 822 (“Inflicting Physical Punishment on Child”) at: https://www.justia.com/criminal/docs/calcrim/800/822/. Alternatively:
As a parent or guardian, you used justifiable force or some other justifiable method to discipline your child; and/or
you acted in a way that a reasonable person would think was justifiable in disciplining him or her in light of the circumstances.
See CALCRIM number 3405 (“Parental Right to Punish a Child”) at: https://www.justia.com/criminal/docs/calcrim/3400/3405/.
If you are charged with killing a child by means of an assault, the following defenses would apply:
the child was not in your care or custody at the time;
the act would not likely result in the use of force against the child;
you did not act intentionally;
the force you used was unlikely to cause serious harm;
at the time of the incident, you weren’t aware of facts that a reasonable person would believe would probably cause the child serious harm; and/or
at the time, you lacked the ability to apply force likely to cause serious harm.
See CALCRIM number 820 (“Assault Causing Death of Child”) at: https://www.justia.com/criminal/docs/calcrim/800/820/.
Examples of Domestic Violence – Child Abuse – Misdemeanor Charges
On or about November 1, 2018, Marston Riley – a Los Angeles County high school teacher in Maywood who lived in Orange County – allegedly engaged in a violent argument with a fourteen-year-old male student, culminating in Riley striking the boy in the face. Later that same month, Riley was arrested by LA County sheriff’s deputies and charged with misdemeanor corporal injury on a child. (The fact that Riley had temporary care/custody over the minor puts this charge in the realm of domestic violence – child abuse.) As a result, Riley faced up to one year in the county jail. See: https://www.nbclosangeles.com/news/ex-maywood-teacher-charged-over-fight-with-student-pleads-not-guilty/6742/.
Following a jury trial, on or about February 1, 2020, four deputy probation officers with the Los Angeles County Probation Department were found not guilty of repeatedly assaulting female teenagers in their care/custody at the Los Padrinos juvenile facility where the officers worked. Specifically, the four officers had been accused of engaging in a vengeful campaign against various inmates via the use of pepper spray and, therefore, were charged with multiple counts of felony assault by a corrections officer and misdemeanor child endangerment. If convicted, they would have been sentenced to a maximum of almost nine years in a state penitentiary (and, of course, would have been fired). See: https://da.lacounty.gov/media/news/four-probation-officers-found-not-guilty-unlawfully-using-pepper-spray-juvenile-hall.
On or about December 15, 2018, a Democrat party member and congressman in the California state legislature, Joaquin Arambula, was arrested by Fresno police on suspicion of misdemeanor child abuse. Specifically, authorities – who charged him in February 2019 – alleged that Arambula had exceeded his parental rights by using excessive force to physically discipline his daughter (then age eight).
At all times, Arambula remained adamant that he had only spanked the girl on a single occasion after she had misbehaved. Notably, the arrest came about as a result of a school nurse calling the county department of CPS (Child Protective Services), who then contacted the Fresno Police Department, after the nurse interviewed the girl, who allegedly told her that Arambula had assaulted her the previous evening. As a result, Arambula was looking at a maximum of six months in county jail. Fortunately for him, however, he was found not guilty on May 16, 2019 following a jury trial. See: https://www.fresnobee.com/news/local/article230475269.html.
Examples of Domestic Violence – Child Abuse – Felony Charges
On or about June 1, 2014, according to the LA County DA’s Office, Los Angeles resident Javier Zamora viciously beat his live-in romantic partner’s (Ms. Hope Beltran) three-year-old toddler; then ripped the phone away from her when Beltran tried to call 9-1-1; then used a threat of force to make the mother falsely claim to police that the blunt force trauma to the child’s head resulted from an accident. (Zamora was arrested seven days later.)
Tragically, the injuries were so severe that the toddler was rendered comatose – i.e., left in a permanent vegetative state. Seven months after the attack, Beltran herself accepted a no-contest plea to felony child abuse for allegedly endangering the child by allowing Zamora, who allegedly had repeatedly abused the child in the past, to live in the house with them.
Ten months after the assault, Zamora also pled no contest to felony child abuse, as well as other felonies. As a result, on or about April 1, 2015, he received a sentence of more than two decades in a state penitentiary, which included an enhancement for causing severe injuries to a child age four or under. That judge also sentenced Beltran to serve a year in county jail and a year in an in-patient rehab facility. See: https://da.lacounty.gov/media/news/man-sentenced-prison-child-abuse-assault-dissuading-witness.
On January 1, 2016, Downey police arrested local resident Ashley Jones and her live-in boyfriend/co-parent Jonathan Lucero for beating to death their child, who was not yet six months old. Jones told ER doctors and police that the night before, she had awoken to find the child was not breathing so, therefore, rushed the baby to the hospital.
There, however, physicians would later testify that the child had been dead on arrival and exhibited signs of recent physical abuse – both from the night before and from preceding weeks. At the end of the trial, Jones was found guilty of second-degree murder and Lucero of felony child abuse with potential sentences – including enhancements for severely injuring a child four years old or younger – of fifteen-to-life and ten years in prison, respectively. And that’s exactly what each of them received two months later. (However, Jones’ conviction was overturned by the California Court of Appeals on a technicality.) See: https://www.nbclosangeles.com/news/downey-mothers-conviction-reversed-for-3-month-old-babys-death/175937/.
The Los Angeles Defense Attorney Law Firm (LADALF)
Los Angeles criminal attorney Ninaz Saffari has defended scores of individuals who have been accused of committing child abuse crimes, ranging from simple battery all the way up to homicide. She is particularly sensitive to the devastating effect this type of prosecution can have on the entire family, and that these convictions can result in the child being taken away by Child Protective Services and placed into foster care (or with another relative).
Ninaz will often bring on expert witnesses to educate the judge and jury about the child abuse allegations, including adolescent and child psychologists. Also, she will work with an outstanding family law attorney, when necessary, to help the accused deal with custody issues complicated by a criminal case. The same goes for immigration attorneys if you face possible deportation upon even a misdemeanor child abuse conviction.