Lewdness or Intoxication in the Presence of a Child

Penal Code 273g PC

Penal Code 273(g) PC is the law that defines and penalizes acting in a lewd manner and/or being intoxicated in the presence of a child. A conviction is a misdemeanor punishable by up to 6 months in county jail and a fine of up to $1000.00.

The provision states that:

“Any person who in the presence of any child 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, is guilty of a misdemeanor.”

A. When is the crime under Penal Code 273g committed?

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

1. he has the care or custody of a child, and either
2. acts in any “degrading, lewd, immoral or vicious” manner, or
3. is “habitually drunk.”
4. It is done in the presence of the child in his care.

The act of being “degrading, lewd, immoral or vicious” is a question of fact that is most appropriately determined by the court.

B. Legal Defenses for charges under Penal Code 273(g)?

The fact that you have been charged does not necessarily mean that you are already found guilty of the offense. There are a number of legal defenses available to those who are being charged with lewd conduct in public places. Some of the more common defenses are as follows:

1. The penal provision is unconstitutional;
2. The child is not in care or custody; and/or,
3. The act did not rise to the level of “lewdness.”

1. Unconstitutional

It has already been ruled by the court in People v. Perreault 182 Cal.App.2d Supp. 843 (1960) that this penal provision, as it relates to a person being intoxicated, is unconstitutional. It should be emphasized that the section has not been amended or changed since this ruling; thus, to raise its constitutionality when charged of the crime may actually prosper.

2. The child is not in care or custody.

An essential element to the crime to be found guilty of the offense is that the child must be in the care of the offender. Hence, a defendant cannot be held guilty in cases when although he may have engaged in lewd behavior, he was unaware of a child or not taking care of the child.

3. The act did not rise to the level of “lewdness.”

What is “degrading, lewd, immoral or vicious” is a question of fact which the court may only determine. The nature of the act largely depends on all of the facts in a case. Therefore, an accused may raise the defense against a PC 273(g) charge by highlighting those facts that disprove that his conduct was “lewd,” or otherwise unlawful.

C. Penalties for Penal Code 273g

A person convicted for the violating Penal Code 273g, lewdness or intoxication in the presence of a child, is punishable by:

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

The offense is a misdemeanor. In some instances, the judge may deem it appropriate to impose misdemeanor probation instead of jail time. This is also called “summary” or “informal” probation.

D. Related Offenses

Lewdness or Intoxication in the presence of a child will only prosper if all elements of the crime, as discussed above, are proven beyond reasonable doubt. However, the lack of one or more elements does not necessarily mean total exoneration. It could be that the act constitutes a related offense. Crimes similar or related to Penal Code 273g are as follows:

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

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

Contributing to the delinquency of a minor under Penal Code 272 PC is committed when a person acts or fails to act in a way that causes a minor (a person under the age of 18) to engage in illegal or delinquent behavior, to become a habitual truant, or to become a dependent of the juvenile court system.

This offense is a misdemeanor punishable by up to one year in county jail and fines of up to $2500.00.

2. Child endangerment – PC 273(a)

California Penal Code 273a PC, otherwise known as “child endangerment,” is committed when a person willfully exposes a child under the age of 18 to unjustifiable pain, suffering, or danger. A person can be charged for subjecting the child to an unreasonable risk of harm, even if the child never suffers actual physical harm.

The crime punishable under the law should be distinguished from the crime of child abuse under California Penal Code 273(d) PC.

Persons convicted for violation of offense under Penal Code 273a shall be punished by up to one year in county jail, and/or a fine of up to $1,000.

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

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.

3. Public Intoxication – PC 647(f)

California Penal Code 647f PC defines and penalizes public intoxication. More specifically, it is a crime to be under the influence of drugs or alcohol, in a public place, to the point of being unable to care for your safety or that of others. Violation of this penal code is a misdemeanor.

Being a misdemeanor, the crime of public intoxication is punishable by imprisonment in county jail for up to six months and/or a maximum fine of $1,000.

There are instances when the judge may impose summary probation upon the defendant in lieu of imprisonment stated above.

However, it should be noted that individuals convicted of this offense may be met with adverse consequences such as negative immigration consequences (if applicable).

If you have ever been arrested or accused of this and/or any other crime in California, request your free consultation by calling us at (626) 827-7222.