The element that distinguishes California Code section 273ab from murder is the element of custody. The difference between Penal Code 273ab and Penal Code 273d is that section 273ab alleges that the child suffered death or paralysis or became comatose as a result of the defendant’s abuse, whereas in section 273d, the child suffers an injury far less significant, such as red marks from slapping or a bruise from punching.
The death of a child is extremely traumatic on all of those involved or associated with the incident leading to the child’s death and the impact on a person charged with Penal Code section 273ab as a result can ruin that person’s life and change them forever.
We understand this and we will help you through this difficult time by giving you knowledge, protecting your interests, and zealously defending against the allegations. Just because a child died or was severely injured doesn’t mean you did anything wrong.
In fact, section 273ab acknowledges this fact. A person has a right to reasonably discipline his or her child. If death results, such as by an accident or a mistake, that is a far less serious crime and can even lead to an outright dismissal or acquittal if by jury.
Proving a Penal Code section 273ab Violation:
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.)
Legal Consequences

  • 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.

Legal Defenses
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.
Being Represented by a Knowledgeable Attorney is Crucial
If you are charged with this crime it is crucial that you retain the services of a knowledgeable attorney as soon as possible. Assault of a child is a very serious crime and when the alleged assault results in the death or severe injury of a child, even more so as a person convicted of violating California Penal Code section 273ab can be sentenced to life in prison.
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We have been successfully defending clients facing all types of criminal charges in Sonoma and Marin Counties, since 1992.
The 100 Trial Lawyers Association has recognized us as one of the best criminal defense attorneys in the country!
California VC 23152(e)- Driving Under the Influence of Drugs
Please call our office today at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation.
Don’t bargain with your freedom! The right attorney makes all the difference between your freedom and incarceration!