Offense
Child endangerment involving conduct likely to cause GBI or death
(Wobbler)
Aggravated Felony (AF)
No conviction of 273a(a) is a COV, because the minimum conduct is negligence and the statute is indivisible.1The Ninth Circuit held that the minimum conduct to commit felony § 273a(a) is not a COV. Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016) (“Although section 273a(a) requires a mens rea of ‘willful[ness]’ for the three prongs of the statute that criminalize indirect infliction of harm or passive conduct, the California Supreme Court has interpreted ‘willful[ness]’ in this context to require proof only of criminal negligence.”). The BIA also has found that criminally negligent child abuse is not a crime of violence under 18 USC § 16(a), even where it results in the child’s death, because it does not involve intentional conduct. See, e.g., Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999) (en banc) (negligence resulted in death by drowning of baby).
The Ninth Circuit held that § 273a(a) is not divisible between the various prongs. Ramirez v. Lynch, 810 F.3d at 1134-1138. Therefore, no conviction of § 273a(a) is a COV. The same ruling must apply to § 273a(b), a lesser included offense to § 273a(a) that is identical to § 273a(a) except that it causes a risk of less serious injury.
Arguably attempt to commit 273a(a) is not a COV. There is intent, but physical force is not required. Still, try to get 364 days or less.
Crime Involving Moral Turpitude (CIMT)
No conviction of 273a(a) or (b) should be held a CIMT because the minimum conduct is negligence and the statute is indivisible.2Moral turpitude requires reprehensible conduct with a minimum of reckless intent, or moral depravity. Negligent conduct never is a CIMT.
Section 273a is not a CIMT because the minimum conduct requires only negligence, and the statute is indivisible. See above endnote for discussion of Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016), which held that that because felony § 273a(a) is an indivisible statute that can be committed by negligence, no conviction can be held a COV. Section 273a can be violated by wholly passive conduct, or good faith but unreasonable belief that the conduct is in the child’s best interest: “the statute does not necessarily imply a general readiness to do evil or any moral depravity.” People v. Sanders (1992) 10 Cal.App. 4th 1268, 1272-1275 (as a state CIMT case finding that 273a is not a CIMT, not controlling but informative). See also, e.g., People v. Pointer (1984) 151 Cal.App.3d 1128, 1131-1134 (macrobiotic diet resulting in severe malnutrition); and Walker v. Superior Court (1988) 47 Cal.3d 112, People v. Rippenberger (1991) 231 Cal.App.3d 1667 (273a includes failure to seek care for sincere religious reasons).
Do not plead to attempt to commit 273a(a) or (b), because it involves intent rather than negligence and is likely a CIMT.
Other Removal Grounds
Deportable crime of child abuse. The Ninth Circuit held that 273a(a) is a deportable crime of child abuse.3See Diaz-Rodriguez v. Garland, 55 F.4th 697 (2022), (deferring to the BIA’s interpretation of the generic definition of child abuse and finding that PC 273a(a) is a categorical match).
Advice and Comments
Responding to 273a(a) charge. Consider 273a(b) and/or an immigration-neutral, age-neutral felony or misdemeanor, e.g., 236/237, 459 1st or 2nd, 594, VC 23103, or, with less than a year imposed, PC 32, 136.1(b)(1), 459. If necessary, consider 245 or 422 (CIMTs) with less than a year, or 23152. Or PC 1001.95 pretrial diversion is not a conviction for immigration purposes.
An offense must have minor age as an element in order to be a crime of child abuse – so an age-neutral offense can never qualify.4The BIA and courts hold that the categorical approach applies to determining whether an offense is a deportable “crime of child abuse.” Under that test, an age-neutral offense can’t possibly be divisible because the statute does not set out alternative elements, one of which requires proof of minor age. Because the statute is overbroad and indivisible, it is not a crime of child abuse for any immigration purpose, regardless of information in the ROC. See discussion at PC 243(a), above, and ILRC, Case Update: Domestic Violence Deportation Ground (2022) at www.ilrc.org/crimes.
But to prevent a mistaken charge in immigration proceedings, do try to keep age out of the record to prevent. See endnote at PC 243(a) regarding age-neutral offenses.
Emphasize to prosecution that even misdemeanor 273a(a) with no custody imposed is a deportable crime of child abuse, and thus can cause the child to permanently lose their LPR or undocumented parent.5Even misdemeanor § 273a(a) can have terrible impact, depending on the case. The conviction will cause an LPR or refugee parent (and many others) to become deportable, so that they can be detained and held hundreds of miles away, and deported. A discretionary waiver of the deportation may or may not be available, depending on individual circumstances. The conviction will bar an undocumented parent from applying for non-LPR cancellation to stay to care for a USC or LPR child, even if it is clear that the parent’s deportation will cause the child to suffer “exceptional and extremely unusual hardship.” See 8 USC § 1229b(b)(1) and Relief Toolkit, “Cancellation for Non-Permanent Residents” at https://www.ilrc.org/sites/default/files/resources/relief_toolkit-20180827.pdf.
Adam Walsh Act. If ROC shows sexual conduct was involved, this might block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.