To prove that the defendant is guilty of violating California Penal Code 273ab, the People must prove that
- he or she had custody of a child who was under 8 years of age
- he or she willfully used force against the child that was likely to produce great bodily injury,
- he or she was aware that the use of force would likely produce great bodily injury,
- he or she had the present ability to apply force likely to produce great bodily injury
- in doing so the child died, became comatose, or suffered some sort of paralysis, and
- When he or she acted, it was not to reasonably discipline the child.
As you may be able to tell, there are a significant number of facts the prosecutor must prove for a jury to find a defendant guilty of this crime and that means there are more potential defenses (see below.)
- Penal Code section 273ab is a felony.
- It is also considered a “serious felony” and therefore plea bargaining is prohibited if the prosecutor believes the is sufficient evidence to prove the crime.
- If a child suffers death than the punishment for a violation of section 273ab is 25 years to life in prison.
- If the child suffers paralysis or becomes comatose, than a violation of 273ab is life in prison with the possibility of parole.
As mentioned above, because there are a number of facts the prosecutor must show to prove a violation of Penal Code section 273ab there are more potential defenses. Such defenses might be depending on your particular case:
- The child’s death or injury was the result of a mistake.
- The child was 8 years old or more.
- When you used force against the child you did not realize it could result in death or injury.
- The force you used was reasonable and the child’s death or resulting injury was an accident.
- The force you used was not the actual cause of the death or injury to the child.
Possible Defensible Scenarios
You spanked a child’s bottom to discipline the child and the force of the spanking caused her to fall off a chair onto a cement floor resulting in a coma. This is defensible because spanking the child was not using force likely to produce death or great bodily injury and it was an accident that the child fell onto the floor.
You took prescribed Vicodin for the first time and drank alcohol and when you blacked out you hit you child with a broom stick causing a brain hemorrhage and death. We would defend you on the ground that you were not aware that the combination of Vicodin and alcohol could cause a black out, you had never suffered a black out before, and so therefore your use of force was not willful.
A hornet flies onto your arm while camping and without thinking you grab a 2×4 used for stoking the camp fire and swing at the hornet and unknowingly strike your child in the head causing a broken neck and paralysis. This is defensible because your intent was not to hit the child, but to prevent harm to it by killing the hornet.