California Penal Code § 653 PC – Tattooing a Minor

California Penal Code § 653 PC makes it a crime to tattoo (or offer to tattoo) a person under the age of 18 years. A conviction is a misdemeanor punishable by up to 6 months in jail and fines of up to $1,000.

The language of the statute reads that:

653. Every person who tattoos or offers to tattoo a person under the age of 18 years is guilty of a misdemeanor. As used in this section, to “tattoo” means to insert pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, so as to produce an indelible mark or figure visible through the skin. This section is not intended to apply to any act of a licensed practitioner of the healing arts performed in the course of his practice.

Examples

• a tattoo artist agrees to “ink” the arm of a 16-year-old boy with a tattoo of the flag.
• a mom offers to tattoo her 17-year old daughter.
• after selling a 17-year-old boy heroin (a violation of Health and Safety Code 11352), the dealer offers to tattoo the boy with a needle in his pocket.

Luckily, there are several legal defenses you can raise if accused of a crime under PC 653. These include showing that you:

• did not “tattoo” a minor;
• were a licensed practitioner of the “healing arts;” and/or,
• were arrested without probable cause.

Penalties

A violation of California Penal Code 653 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 explain the following in this article:

• 1. Is it illegal to tattoo a minor?
• 2. What are the legal defenses?
  • 2.1. You did not “tattoo”
  • 2.2. You were a licensed practitioner of the healing arts
  • 2.3. There was no probable cause to arrest you
• 3. 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. Lewdness or intoxication in the presence of a child – PC 273(g)

1. Is it illegal to tattoo a minor?

California Penal Code 653 PC says that it is a crime if you either tattoo or offer to tattoo a person under the age of 18 years.¹

Under PC 653, “to tattoo” means:

to insert pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, so as to produce an indelible mark or figure visible through the skin.²

An exception under this code section applies to licensed practitioners of the “healing arts.”³ This means these professionals are not guilty of tattooing a minor by pricking a minor’s skin with a needle in the course of their practice.

Some examples of professionals employed in the “healing arts” include:

• occupational therapists,
• massage therapists,
• chiropractors,
• medical assistants, and
• acupuncturists.

2. What are the legal defenses?

If you are accused under PC 653, we can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed.

In our experience, three effective defenses to PC 653 accusations are:

1. you did not “tattoo”;
2. you were a licensed practitioner of the healing arts; and/or;
3. there was no probable cause to arrest you.

2.1. You did not tattoo

Recall that Penal Code 653 provides a very specific definition of the phrase “to tattoo.” A valid defense, therefore, is to show that your actions did not fall within this definition. For example, placing a temporary tattoo on a child is not a crime because you did not prick a needle into the child’s skin.

2.2. You were a licensed practitioner of the healing arts

Also recall that there is an exception under PC 653 for licensed practitioners of the healing arts. If you as a licensed healing arts professional “tattoo” a minor in the course of your practice (such as by drawing blood from a minor), then you are not guilty of a crime. Penal Code 653 specifically frees you from criminal liability.

2.3. There was no probable cause to arrest you

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can arrest you for a crime.

If you were stopped or arrested for violating PC 653, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction of charges.

“Probable cause” essentially means that there is a reasonable belief that you committed a crime (based on all of the circumstances).

3. Penalties, Punishment, and Sentencing

Tattooing a minor is a misdemeanor. 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 you to misdemeanor probation. This is also called “summary” or “informal” probation.

4. Related Offenses

There are three crimes related to the tattooing of a minor. These are:

1. contributing to the delinquency of a minor – PC 272;
2. child endangerment – PC 273(a); and,
3. lewdness or intoxication in the presence of a child – PC 273(g)

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).

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. Lewdness or intoxication in the presence of a child – PC 273(g)

California Penal Code 273(g) PC makes it a crime to act in a lewd manner, or to be intoxicated, in the presence of a minor.

A prosecutor must prove three elements in order to successfully convict you under PC 273(g). These are that you:

1. had the care or custody of a child, and either
2. acted in any “degrading, lewd, immoral or vicious” manner, or
3. were “habitually drunk.”¹¹

A California court has ruled that PC 273(g), as it relates to a person being “habitually drunk,” is unconstitutional.¹² Further, PC 273(g) has not been amended or changed since this court ruling. This means there is some uncertainty as to whether the intoxication portion of the statute is still a valid law.

Lewdness or intoxication in the presence of a child is a misdemeanor punishable by:

• imprisonment in the county jail for not more than six months; and/or,
• a maximum fine of $1,000.¹³

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