Almost as common a crime as “active” child abuse in LA County – at least as far as prosecutions go – is “passive” child abuse, a.k.a., child neglect/child abandonment. These criminal charges can range from misdemeanors – such as a parent unlawfully or unreasonably withholding food, shelter or other living necessities from a child -- all the way up to serious felonies like hot-car deaths, which entail potential life sentences.

According to California law, child neglect covers any unlawful act that jeopardizes a minor’s well-being or safety. No physical injury is required to secure a conviction at trial, – psychological or emotional suffering will suffice.

Child abandonment is a subset of this area of criminal law, and concerns any parent or guardian’s attempt – successful or not – to leave the minor unattended and in peril, or even to leave him or her in a public area with the intent to discard the child. See: https://lao.ca.gov/1996/010596_child_abuse/cw11096a.html.

You can even be charged with misdemeanor neglect if your child is a chronic truant (see below). In fact, most child neglect crimes are charged as misdemeanors, but prosecutors occasionally have the discretion to charge you with a felony for particularly egregious offenses (known as “wobblers”).

State Statutes Regarding Domestic Violence – Child Neglect

California Penal Code section 270

Under section 270, if you are a parent of a child 17 years or younger and you unlawfully and intentionally fail to feed, clothe or house him or her, or fail to provide medical care (or similar remedial care), then you will be charged with a misdemeanor. See: https://codes.findlaw.com/ca/penal-code/pen-sect-270.html.

California Penal Code section 270.1

Under section 270.1, if you are the parent or legal guardian of a child under age seven and that child is considered a “chronic truant”, and you failed to take all reasonable measures to supervise him or her and to encourage him or her to attend school, then you will be charged with a misdemeanor. See: http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=270.1.

(“Chronic truant” is defined in the California Education Code section 48263.6. See: https://codes.findlaw.com/ca/education-code/edc-sect-48263-6.html.)

California Penal Code section 270.5

If you unjustifiably (i.e., unlawfully or unreasonably) refuse to allow your underage child into your home, or if you otherwise refuse to at least provide him or her with an adequate alternative home when requested by an agent from Child Protective Services (or any police or probation department), then you will be charged with this misdemeanor violation. See: https://codes.findlaw.com/ca/penal-code/pen-sect-270-5.html.

California Penal Code section 271

If you desert your child, assuming he or she is thirteen years old or younger, in a public place with the intent to abandon him or her, then you will be prosecuted for this crime. However, unlike most of these other child neglect offenses, the DA’s Office can decide to prosecute this as a misdemeanor or a felony, depending on the severity of the circumstances. See: https://codes.findlaw.com/ca/penal-code/pen-sect-271.html.

Convictions and Sentencing Terms for Domestic Violence – Child Neglect

California Penal Code section 270

Under section 270 (failing to provide living essentials to your child), then you will be charged with a misdemeanor that entails the following punishment:

  1. a maximum of 12 months in the county jail;

  2. a fine of up to $2,000; or

  3. both.

Prosecution and Sentencing Alternatives under California Penal Code section 270(b)

Fortunately, the court provides an alternative to prosecution or even jail that benefits all parties involved. Specifically, under Penal Code section 270b, anytime during the criminal proceedings (including before you even enter a plea), or even after you are convicted (but before you are sentenced), your attorney can enter into what is essentially a civil compromise with the court.

This consists of you entering into an agreement (typically two years long but sometimes less) wherein you make monthly payments to the other parent or guardian of your child for the purpose of the child’s care and well-being (e.g., to cover living expenses). Once that compromise is reached, the judge will suspend the proceedings or post-conviction sentence to allow you to meet your financial obligations.

If you do, then at the end of that period, the judge will dismiss the case against you. If not, then a new hearing will be scheduled to see if you breached the terms of your agreement in bad faith, or whether a new or modified financial agreement shall be made. See: https://codes.findlaw.com/ca/penal-code/pen-sect-270b.html.

Finally, pursuant to under Penal Code section 270d, the judge will require you to pay any court fine directly to that co-parent or guardian. See: https://codes.findlaw.com/ca/penal-code/pen-sect-270d.html.

California Penal Code section 270.1

If you are convicted of a misdemeanor for being the parent or guardian of a chronic truant, you can expect the following punishment:

      1. a maximum of 12 months in the county jail; 

      2. a fine of up to $2,000; or 

      3. both.

However, in contrast to section 270, if you are convicted under section 270.1, you may eligible for a deferred entry of judgment (DEJ) program, which would include the following:

  1. meetings with school officials (teachers, psychologists, counselors, etc.);

  2. parenting classes;

  3. mental health counseling; and

  4. alcohol and/or drug counseling.

For a list of court-approved DEJ programs in LA County, see: http://publichealth.lacounty.gov/sapc/cjp/PC1000Jan2017.PDF.

If you violate any of these DEJ conditions, however, then the court will immediately enter a guilty conviction against you and schedule a sentencing hearing.

California Penal Code section 270.5

If convicted of unlawfully refusing your child adequate shelter, a misdemeanor, then at most you will face a fine of five thousand dollars ($5,000). Pen. Code § 270.5(a).

California Penal Code section 271

As indicated above, a conviction for deserting your under-age-14 child in a public place with the intent to desert him or her will get you the following, depending on the nature of the conviction:

  1. 12 months in the county jail (misdemeanor or felony); or

  2. a $1,000 fine only (very rare with a felony); or

  3. both (misdemeanor or felony); or

  4. imprisonment pursuant to California Penal Code section 1170(h): a county jail term of sixteen, twenty-four or thirty-six months (felony only).

See: https://codes.findlaw.com/ca/penal-code/pen-sect-1170.html.

Defenses to Domestic Violence – Child Neglect

You were lawfully justified in refusing your child care

One common defense that would work well against a section 270.5 violation, for example, is that you did not unlawfully refuse to provide the purported victim care, food, medical treatment, shelter or any other basic need. In other words, if you were legally justified in withholding such care, then you would not be criminally culpable. For instance, if your child was a violent juvenile delinquent wanted by the law, particularly one who posed a legitimate threat to your safety, then you would be justified in refusing him or her sanctuary.

You did not intentionally refuse your child any essential care

Another common viable defense to most child neglect charges is that you did not willfully refuse your child a basic living necessity. In other words, the alleged denial of care either resulted from an accident or from some other event beyond your control. For example, your bank account was frozen by the IRS for unpaid taxes and you had no access to other funds to provide for these essentials. Similarly, if you had been evicted from your apartment, then you obviously would not have had the ability to provide shelter for your child in that former residence.

You did not act in a criminally negligent manner

Or perhaps an accident reconstructionist may be required (as well as his or her report) to show the court that the incident at issue was purely the result of an accident. This is almost certainly what Mötley Crüe drummer Tommy Lee would have done had he been arrested, charged, prosecuted, and tried for the tragic death of his son’s four-year-old friend, Daniel Karven-Veres, during a party at Lee’s Malibu estate on or about June 15, 2001.

The arguably criminally negligent death of a four-year old at rock star Tommy Lee’s house

On that day, the boy had reportedly been left alone by his “manny”, a German national named Christian Weihs, who later claimed to have handed him off to another caretaker at the party who was there watching a different young boy. (The manny supposedly left to attend some other event, but later reportedly fled the country for his native country to avoid potential legal problems stemming from the tragedy. The other boy’s caretaker, however, told police that no such hand-off, much less any agreement between herself and Weihs, had ever occurred or been reached.)

At some point after dark – following a day where the adult guests, including Lee, had allegedly been drinking alcohol all day – the boy apparently slipped into or tried to go swimming in the pool, which had at least partially enclosed by a pool cover and had a black bottom, and drowned. No lifeguard was ever on duty as Lee believed the entire pool had been securely covered. Nor was any protective fence erected around the pool.

Presumably it was an attorney acting on Lee’s behalf who dealt directly with the LA County DA’s Office to head off any potential prosecution. If that was indeed the case, then that attorney apparently convinced the DA’s Office that Lee, who was not legally responsible for the boy because the latter had arrived with a manny approved by his parents, and because Lee reasonably believed the manny had remained at the crowded party.

In addition, the DA’s Office apparently did not believe that they had enough evidence to criminally charge Wiehs, which they could have done pursuant to the United States’ extradition treaty with Germany, which Germany presumably, then, would have resulted in his extradition to the U.S. If that had actually transpired and Wiehs had been tried and convicted, he would have faced a maximum of life in prison for felony child abandonment resulting in death.

In any event, the boy’s mother sued Lee for wrongful death in civil court but a jury found him not guilty of negligence. See: https://www.cnn.com/2003/LAW/04/17/ctv.tommy.lee/index.html.

Examples of Domestic Violence – Child Neglect – Misdemeanor Charges

Yorba Linda couple tried for misdemeanor child neglect, resulting in hung jury

In late November 2002, LA County sheriff’s deputy Grady Machnick – a sergeant supervisor at the Men’s Central Jail Facility in DTLA – and his wife Deborah (a public school principal) went to trial at the Newport Beach superior courthouse. Prosecutors alleged that they had engaged in a months’-long campaign of excessively punishing their fifteen-year-old son, who was Gary’s biological child and Deborah’s step-son.

Specifically, the Orange County DA’s Office claimed that in response to the boy failing to do his chores, performing poorly at school, pilfering petty cash from them, and shoplifting, the Machinicks locked him out of their home, forcing him to sleep outside; made him go to school with dog feces in his backpack; refused to let him have dinner with them at the dinner table; and only fed him leftovers in the kitchen away from his siblings.

Notably, the Machinicks actually admitted to doing all of these things as part of their “tough love” program. However, the parties disagreed on police allegations that the couple also physically assaulted him. (Ironically, as prosecutors pointed out, because of the defendants’ respective occupations, they were actually required by law to report on themselves for the alleged neglect.)

As a result, the couple were both tried for misdemeanor child neglect, as well as felony conspiracy to endanger the boy, with each facing a maximum of almost four years in a state penal institution. In addition, after the couple were arrested, in the months leading up to the trial, they were both demoted at their respective jobs, with Gary being suspended without pay and Deborah required to stay away from minors at the elementary school where she worked.

Fortunately for the couple, however, on or about December 15, 2002, the jury found them not guilty on the felony conspiracy charge, but remained hung on the misdemeanor child neglect charges.

See: https://www.latimes.com/archives/la-xpm-2002-nov-21-me-parents21-story.html.

Huntington Beach single mother serves three months in jail for leaving eight-year-old alone

On or about January 15, 1996, single mother Michiko Kamiyama walked out of the Orange County central jail (women’s facility) after completing a ninety-plus-day sentence following a conviction of misdemeanor child neglect. (The jury found her guilty of inflicting unjustified mental anguish on the girl.) In addition, in an unusual move, the municipal court judge who sentenced her also required her to complete English classes – (Kamiyama was born and raised in Japan) – as a mandatory probationary term.

Her ordeal began when she was forced to choose between going to work that fateful night and leaving her daughter (age eight) alone (because she was unable to find a temporary caretaker), or watch her daughter and risk being fired. Unfortunately, she chose to do the latter. As a result, a neighbor who noticed the daughter had been left alone called Huntington Beach PD, who cited Kamiyama for the misdemeanor and had Child Protective Services pick up the girl.

Kamiyama was convicted despite the fact that California, like many other states, does not have a law dictating how old a child must be before a parent or guardian can leave him or her alone, much less how long he or she can be left alone. Not surprisingly, then, Kamiyama’s case went all the way up to the California appellate court, which overturned her conviction at the end of May 1998. (Unfortunately for Kamiyama, the decision came too late to spare her more than three months behind bars.) Notwithstanding, the appellate justices were careful to clarify that their opinion did not set a legal precedent for other California courts.

See: https://www.latimes.com/archives/la-xpm-1998-jun-20-mn-61717-story.html.

Examples of Domestic Violence – Child Neglect – Felony Charges

Mother charged with second-degree murder and felony child neglect resulting from hot-car death

On or about October 3, 2019, the LA DA’s Office charged South Bay resident Lacey Mazzarella with felony child neglect and second-degree murder after he toddler (age two) allegedly died in a hot car as a result of Mazzarella’s criminal negligence. Specifically, prosecutors alleged that she left the girl in a vehicle by herself in the city of Carson on or about September 21st, and came back hours later to find the child deceased. According to authorities, Mazzarella had left both the engine and heater on for that entire time. She now faced a fifteen-to-life-with-possibility-of-parole penitentiary term with bail set at more than one million dollars.

See: https://da.lacounty.gov/sites/default/files/press/100419_Mother_Charged_with_Death_of_2_Year_Old_Daughter.pdf.

Mother charged with second-degree murder and felony child neglect after boy found dead in closet

On or about August 24, 2016, Los Angeles prosecutors from the District Attorney’s Office charged Angeleno Veronica Aguilar with felony child neglect and second-degree murder after her boy (age eleven) allegedly died in a closet several days earlier. The boy’s stepfather allegedly discovered his body then called LAPD. According to detectives investigating the case, the boy apparently died from long-term malnourishment. The Assistant DA assigned to the matter requested a bail of two million dollars. Maximum incarceration: fifteen to life with possible parole.

See: https://da.lacounty.gov/sites/default/files/press/082516_Mother_Charged_with_Murder_of_Son_Found_Dead_in_Closet.pdf.

Antelope Valley couple accepts no-contest felony plea for attempting to give their toddlers away

On or about December 29, 2017, an Antelope Valley (northern California) couple – Vince Calogero and Sarah Nilson – accepted a no-contest offer to a felony (attempt to commit child abandonment) made by the Kern County DA’s Office wherein they admitted to trying to sell their kids – two male toddlers (age twelve months and two years, respectively) – for drug money to unknown persons. In addition, Calogero and Nilson (who may or may not have been married) were also alleged to have kept the toddlers in squalid conditions at their home.

The convicted parents were scheduled to be sentenced six months later; however, the judge immediately required them to complete a twelve-month weekly package of counseling sessions for substance-addiction and parental issues. (Apparently, this was part of a pre-trial diversion program.) Assuming they successfully finished the year-long program, stayed out of legal trouble, and otherwise adhered to all other court-ordered requirements, the judge indicated he would consider dropping the felony down to a misdemeanor county for again, attempted child abandonment.

See: https://da.lacounty.gov/sites/default/files/press/122917_Lancaster_Couple_Pleads_to_Attempted_Child_Abandonment_Charge.pdf.

The Los Angeles Criminal Defense Attorney Law Firm (LADALF)

As LADALF’s senior counsel, Ninaz Saffari understands the intricacies and highly sensitive issues involved when defending a child neglect case. Defending against a child neglect/abandonment charge is a bit trickier than fighting other domestic violence charges for the simple reason that the “willfullness” element is essentially automatically proven by the very fact of the abandonment itself.

In other words, if the fact that a child has been abandoned by his or her parent is established by the prosecution, then that itself serves as “prima facie” (Latin for “on its face”) evidence that the desertion was intentional. Penal Code section 270. Thus, it’s critical that you have an attorney who understands when to directly attack a case and when to collaterally attack it.

To that end, Ninaz often works closely with experts and consultants in child abuse cases, particularly if the child him/herself is going to be called to testify against you. For example, a child under ten years old who takes the stand at trial may require you calling a cognitive therapist to the stand to discuss the child’s cognitive development (or lack thereof). See, e.g., Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 330 (“Testimony of Child 10 Years of Age or Younger”) at: https://www.justia.com/criminal/docs/calcrim/300/330/.