Is criminal negligence an element of the crime of inflicting unjustifiable physical pain or mental suffering on a child?

California, United States of America


The following excerpt is from People v. Sargent, 60 Cal.App.4th 137, 70 Cal.Rptr.2d 203 (Cal. App. 1997):

The majority also concludes that if criminal negligence is not recognized as an element of the crime of inflicting unjustifiable physical pain or mental suffering on a child, that branch of section 273a, subdivision (a), would be tantamount to a strict liability crime. I disagree. Generally speaking, a strict liability offense is one which dispenses with a mens rea, scienter or wrongful intent element. (See People v. Simon (1995) 9 Cal.4th 493, 519-522, 37 Cal.Rptr.2d 278, 886 P.2d 1271, and authorities cited therein.) Child abuse under the second branch of section 273a, subdivision (a) requires a mens rea: defendant must willfully inflict unjustifiable physical pain or mental suffering on the child, that is, the act of infliction must be intentional.

It is for the trier of fact to determine whether such intentional act was done "under circumstances or conditions likely to produce great bodily harm [60 Cal.App.4th 155] or death" ( 273a, subd. (a)), i.e., under conditions "in which the probability of serious injury is great." (People v. Jaramillo, supra, 98 Cal.App.3d at p. 835, 159 Cal.Rptr. 771.) If so, the crime is a felony; if not, it is a misdemeanor. (People v. Deskin, supra, 10 Cal.App.4th at p. 1401, 13 Cal.Rptr.2d 391.)

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