Legal Question in Criminal Law in California

Re: Child not in carseat

273a(b) is a misdemeanor. In California, misdemeanors are generally punishable by up to 1 year in the county jail. But, that does not mean he will get that, especially if this is a first criminal offense. More likely is some kind of probation. Plus, this is a section of the law designed primarily to address child abuse, and this is not the classic child abuse situation, so this makes the maximum sentence further unlikely. However, his current lawyer is the one most likely to know what kind of sentencing guidelines the specific court he is in, and the specific judge he is before, is likely to follow. These things can vary a lot by locale.

273a(b) requires some kind of "willful" act of violence or neglect by the parent. It sounds like the police and the DA are trying to argue that failure to put him in a child seat as required by law was willful neglect or wilfully placing him in excessive danger. I would not say this is an unsound argument, but much may depend on the traffic conditions, nature of location, time of day, etc.

273a does require that any probation include the following as a minimum:

1. at least 48 months of probation

2. a criminal protective order (which will basicallly order him to not again drive the child around without being in a proper restraint seat)

3. (and this is the worst part)..at least one year in a child abuser's counselling program.

Being branded as a "child abuser" is without a doubt the worst part of this situation. Although he used bad judgment, this is not the kind of situation the law classically envisions as "child abuse", yet that is what he is essentially being charged with. The California minimum sentencing law is hard and fast on this, so if he is convicted, you can pretty much count that he will be forced into this somewhat frivolous child abuse counseling with people who have done far worse things. Yet, I see no exception to it.

Since his attorney has pleaded him guilty, it may mean he sees some potential defense here. Or, it may just mean he is trying to delay awhile to research possible defenses. Or, it may mean that he is trying to gain greater leverage in negotiating a lenient sentence if he pleads him out. I would say put your faith in the attorney if he comes well recommended and seems to know what he/she is doing. I would defer to his/her prediction of the likely sentence here, but I would hazard that if he is an upstanding member of the community with a clean record, he shouldn't see more than probation. But probation for this is not a real good thing because of the misleading "child abuser" stigma.

Re: Child not in carseat

Woops. I meant to say since your attorney has pleaded him NOT guilty....that is definitely the right thing to do for now.

If you would like to discuss this more, or just have more questions and could use a little more comfort (or discomfort), feel free to e-mail me at [email protected]. My assistant and I have been discussing this and we do have some sympathetic thoughts I wouldn't necessarily share on this website.

Re: Child not in carseat

One correction. 273a(c)(5) does permit the court to waive any of the mandatory probation provisions if it makes an affirmative finding that doing so is in the interests of justice.