Penal Code § 273g PC – Lewdness or Intoxication in the Presence of a Child

California Penal Code § 273(g) PC makes it a crime when a person “indulges in any degrading, lewd, immoral or vicious habits or practices, or who is habitually drunk in the presence of any child in his care, custody or control.” This offense is a misdemeanor punishable by up to 6 months in county jail and a fine of up to $1000.00.

In the legal case of People v. Perreault, the court found that this section, as it relates to a person being intoxicated, is unconstitutional. Because the section has not been amended or changed since this ruling, it is questionable if being drunk while caring for a child is still a crime.

Examples

• an adult nanny sells narcotics, a crime under HS 11352, while caring for an eight-year-old.
• a husband and wife watch pornographic videos in front of their children.
• a sitter has her boyfriend over while watching a child and the two have sexual intercourse in the child’s presence.

Luckily, there are several legal defenses you can raise if accused of acting lewd or being intoxicated in the presence of a child. These include showing that:

• Penal Code 273(g) is unconstitutional
• the child was not in your care or custody; and/or,
• your acts were not “lewd.”

Penalties

A violation of PC 273(g) is charged as a misdemeanor (as opposed to a California felony or an infraction). The crime is punishable by:

• imprisonment in the county jail for not more than six months; and/or,
• a maximum fine of $1,000.

Our California criminal defense attorneys will discuss the following in this article:

• 1. What is lewdness or intoxication in the presence of a child?
• 2. What are the best defenses?
  • 2.1. Penal Code 273(g) is unconstitutional
  • 2.2. The child was not in your care or custody
  • 2.3. Your conduct was not “lewd”
• 3. What are the penalties, punishment, and sentencing?
• 4. Related offenses
  • 4.1. Contributing to the delinquency of a minor – PC 272
  • 4.2. Child endangerment – PC 273(a)
  • 4.3. Public intoxication – PC 647(f)

1. What is lewdness or intoxication in the presence of a child?

California Penal Code 273(g) PC, says that it is a crime if:

1. you have the care or custody of a child, and either
2. you act in any “degrading, lewd, immoral or vicious” manner, or
3. you are “habitually drunk.”¹

Whether or not you act in a “degrading, lewd, immoral or vicious” way is a question of fact. This means a judge or jury will make the decision on whether certain behavior is unlawful after considering all of the details in a case.

Further, a California court has ruled that PC 273(g), as it relates to you being “habitually drunk,” is unconstitutional.² The court found it to be unconstitutional because the phrase “habitually drunk” is

• vague,
• uncertain, and
• ambiguous.³

Penal Code 273(g) has not been amended or changed since this court ruling. This means there is some uncertainty as to whether the intoxication portion is still valid law.

2. What are the best defenses?

Here at Shouse Law Group, we have represented literally thousands of people charged with crimes related to children, including PC 273(g). In our experience, the following three defenses have proven very persuasive with judges, juries, and prosecutors.

1. Penal Code 273(g) is unconstitutional;
2. The child was not in your care or custody; and/or,
3. Your conduct was not “lewd.”

2.1. Penal Code 273(g) is unconstitutional

A California court has ruled that the phrase “habitually drunk” is unconstitutionally vague. This means if you are found to be intoxicated in the presence of a child, we would argue that you are not guilty because the law itself is against the U.S. Constitution.

2.2. The child was not in your care or custody

Even if you acted in a lewd way in front of a child, you are guilty under PC 273(g) only if you were caring for that child (or in charge of them). Therefore, we would assert that:

• although you may have engaged in lewd behavior,
• you are still not guilty because you were unaware of a child or not taking care of the child.

Typical evidence we rely on includes eyewitness testimony and video surveillance footage.

2.3. Your conduct was not “lewd”

A judge or jury will determine if certain actions are “degrading, lewd, immoral or vicious” based upon all of the facts in a case. Therefore, we can try to defend against a PC 273(g) charge by highlighting those facts that disprove that your conduct was “lewd” or otherwise unlawful.

Similar to the last defense, we would compile all the surveillance video and eyewitness accounts available to show that your actions did not rise to the level of lewd. As long as we can raise a reasonable doubt, the prosecutors may be willing to dismiss the charge.

3. What are the penalties, punishment, and sentencing?

Lewdness or drunkenness in the presence of a child is a misdemeanor. And, the offense is punishable by:

• imprisonment in the county jail for not more than six months; and/or,
• a maximum fine of $1,000.⁴

Please note that in lieu of jail time a judge may order misdemeanor probation. This is also called “summary” or “informal” probation.

Also note that if you are guilty under Penal Code 273(g), authorities will likely contact the Department of Children and Family Services for the county in which you reside. The result could be that a parent or guardian loses custody of a child.

4. Related Offenses

There are three crimes related to lewdness or intoxication in the presence of a child. These are:

1. contributing to the delinquency of a minor – PC 272;
2. child endangerment – PC 273(a); and,
3. public intoxication – PC 647(f).

4.1. Contributing to the delinquency of a minor – PC 272

Contributing to the delinquency of a minor is a crime per California Penal Code 272 PC.

The offense occurs when you act, or fail to act, and as a result a minor becomes:

• a dependent of the juvenile court system;
• a juvenile delinquent; or
• a habitual truant.⁵

A violation of Penal Code 272 is a misdemeanor.⁶

The possible penalties include

• up to one year in county jail, and/or
• a fine of up to $2,500.⁷

4.2. Child endangerment – PC 273(a)

Penal Code 273(a) PC is California’s criminal “child endangerment” law. It punishes you for willfully exposing a child to pain, suffering, or danger.

Specifically, child endangerment, under Penal Code 273(a), can be charged when you:

• cause or permit a minor to suffer unjustifiable physical pain or mental suffering,
• willfully cause or permit a minor to be injured, or
• willfully cause or permit a minor to be placed in a dangerous situation.⁸

Please note that child endangerment is different than the crime of child abuse, under California Penal Code 273(d) PC.

Punishment under PC 273(a) depends on whether the exposure to the child included death or “great bodily injury.”

If there was no possibility of either, Penal Code 273(a) is a California misdemeanor. And, the offense is punishable by:

• up to one year in county jail, and/or
• a fine of up to $1,000.⁹

If there was a risk of death or great bodily harm, child endangerment becomes a California “wobbler” offense. A “wobbler” may be charged as either a misdemeanor or a felony, in the prosecutor’s discretion.

If charged as a felony, child endangerment can include punishment of:

• two, four, or six years in the California state prison, and/or
• a fine of up to $10,000.¹⁰

4.3. Public Intoxication – PC 647(f)

Penal Code 647(f) PC is known as California’s “drunk in public” (or “public intoxication”) law.

You violate PC 647(f) if you are so drunk that you:

1. are unable to exercise care for your safety or the safety of others, OR
2. interfere with, obstruct, or prevent others from using streets, sidewalks, or other “public ways.”¹¹

Drunk in public is a misdemeanor in California.¹² If convicted, you may face the following:

• up to six months in county jail, and/or
• a fine of up to $1,000.¹³

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