It can, but only through a narrow rule. When the conviction is for sexual battery, an assault under Penal Code section 245, or corporal injury on a spouse or cohabitant, the offense happened in the presence of, or was witnessed by, a minor, and one of the listed family or household connections exists, that fact is a circumstance in aggravation when a judge chooses a felony prison term. It is not an automatic add-on, and it is separate from a child endangerment charge.

The specific rule and what it requires

Penal Code section 1170.76 applies only when someone commits or attempts one of three offenses: section 243.4 (sexual battery), section 245 (assault with a deadly weapon, with force likely to produce great bodily injury, and related assaults), or section 273.5 (corporal injury on a spouse or cohabitant). It does not reach every domestic violence charge; domestic battery under Penal Code section 243(e)(1), for example, is not on the list. For how domestic violence relationships and abuse are defined generally, see domestic violence.

The statute also requires one of these connections:

  • The defendant is or has been a member of the household of the minor or of the victim.
  • The defendant is a marital or blood relative of the minor or of the victim.
  • The defendant or the victim is the minor’s natural parent, adoptive parent, stepparent, or foster parent.

Because the connection can run through the victim, the child does not have to be the defendant’s own child or relative. When a connection exists and the offense “contemporaneously occurred in the presence of, or was witnessed by, the minor,” that fact “shall be considered a circumstance in aggravation of the crime” in choosing a prison term under Penal Code section 1170(b).

Why “aggravating circumstance” does not mean automatic

Under Penal Code section 1170(b), when a felony carries three possible prison terms, the court may not impose more than the middle term unless circumstances in aggravation justify it and the facts behind them “have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury” or by the judge in a court trial.

So a child’s presence cannot move a sentence above the middle term unless the defendant stipulates to the underlying facts or they are found true beyond a reasonable doubt. Even then, the court decides whether the aggravating circumstances justify the upper term.

This only matters for a felony prison term

Section 1170.76 applies “in imposing a term under subdivision (b) of Section 1170,” the rule for choosing among three possible terms of imprisonment. Corporal injury under Penal Code section 273.5(a), for example, can be punished by two, three, or four years in state prison, or by up to one year in county jail or a fine. A misdemeanor sentence has no three-term choice, so this rule has nothing to act on there. For the elements, defenses, and full penalty structure of that charge, see corporal injury on a spouse or cohabitant.

A separate risk: a child endangerment charge

The sentencing rule above is not the only way a child’s presence can matter. Depending on the facts, the same incident can also lead to a separate charge of child endangerment under Penal Code section 273a, whatever happens with the domestic violence charge. That is a different consequence, an additional charge rather than a longer term on the same charge, with its own elements and penalties. See child endangerment for how that charge works.

Next steps

Whether this rule applies depends on the exact charge, the relationships among everyone involved, and what the child saw or was present for. Defense counsel at the Law Offices of David S. Chesley can walk through your specific charges and explain how this rule could affect your sentence. Call (800) 755-5174 for a case review.