Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. LA049811. Richard H. Kirschner, Judge.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Appellant Merlin G. Beall appeals from a judgment entered after a jury found appellant guilty of assault on a child causing death (Pen. Code, § 273ab, count 2), and child abuse (§ 273a, subd. (a), count 3).
All further statutory references are to the Penal Code, unless otherwise indicated.
The jury deadlocked on a count of willful, deliberate, premeditated murder (§ 187, subd. (a)), that was dismissed pursuant to the People’s motion after the trial court declared a mistrial.
Appellant was sentenced to 25 years to life on count 2. The trial court imposed but stayed pursuant to section 654, the upper term of six years on count 3, plus six years for the great bodily injury enhancement.
We remand for a new sentencing hearing on count 3 and otherwise affirm.
CONTENTIONS
Appellant contends that: (1) the trial court erred in admitting facts of the uncharged death of his other daughter, Elena, pursuant to Evidence Code section 1101, subdivision (b); (2) the trial court erred in admitting evidence that methamphetamine was detected in Elena’s body; (3) the trial court erred in allowing supplemental argument in response to a jury question; (4) the trial court erred in failing to instruct the jury on simple assault as a lesser included offense to assault on a child causing death; (5) child endangerment is a lesser included offense to assault on a child causing death; (6) the trial court’s imposition of the upper term on the count of assault on a child causing death violated his right to a jury trial and due process; (7) the trial court erred in denying appellant presentence custody credits; and (8) the abstract of judgment must be remanded for modification.
FACTS AND PROCEDURAL HISTORY
Darla
Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following. Appellant and Karen Cox (Cox) were the parents of Darla, who was eight weeks old at the time of her death. Before Darla’s birth, appellant was very angry with Cox because she had an extramarital affair. They eventually reconciled and lived with Cox’s parents for the first few weeks of Darla’s life until they moved to an apartment. A short time before Darla’s death, appellant told Cox’s mother that Darla did not resemble him and he suspected that Darla might not be his biological child. When Darla had choked on formula two weeks before her death, appellant had suctioned mucous from her mouth with a bulb syringe. He did not use a paper towel.
On July 20, 2005, at 2:50 a.m., appellant awakened Cox with his screams to call 911 because Darla was choking on formula. Appellant met paramedic Michael Rieger (Rieger) outside the complex and told him that he was an emergency medical technician and had unsuccessfully performed back blows on Darla after she had choked on formula. Appellant told paramedic Scott Larue that he had been feeding Darla, and when he turned around, he noticed she was not breathing.
The paramedics found Darla unattended on the floor, cold, pale, not breathing, and in full cardiac arrest. Their attempts to ventilate Darla with a bag valve mask, back blows and front thrusts to dislodge any obstruction, and administration of CPR were unsuccessful. Appellant accompanied the paramedics in the ambulance as paramedic Oliver Fry unsuccessfully used a laryngoscope to look for obstructions in Darla’s mouth. He used a forceps to remove a small object from Darla’s mouth, but could not determine whether the object was paper or Darla’s tissue, so he made no further attempts.
Shortly after 3:00 a.m., emergency physician Dr. Joseph Thomas performed a finger sweep of Darla’s mouth. He used a laryngoscope to examine the obstruction, and using forceps, extracted two pieces of paper towel from her throat. The first piece was a small flap from the larger second piece, a balled paper towel lodged in her upper esophagus. In order to remove the paper towel, Dr. Thomas had to apply force equivalent to that necessary to uncork a wine bottle. Dr. Thomas observed that Darla’s upper esophagus was stretched out beyond its normal size, and that the wadded paper towel prevented air from Darla’s nose or mouth from getting to her lungs.
Darla did not regain consciousness, was placed on life support, and was pronounced brain dead on July 22, 2005, by Dr. Timothy Deakers, a pediatric intensive care physician.
When Rieger, who had witnessed the extraction of the paper towel, asked appellant in the waiting room why he did not inform paramedics of the paper towel, appellant explained that while he had been feeding Darla, paper towels were next to her, and that when he turned back to her, the paper towels were gone. At the hospital, appellant told Los Angeles Police Officer Richard Perez that after Darla spit up formula when he fed her, he used a paper towel to wipe her mouth and set the paper towel next to her. He looked away for a few seconds, and when he turned back, Darla had swallowed the paper towel. He also told Los Angeles Police Sergeant Kenneth Henkle that he believed Darla had grabbed a paper towel, put it into her mouth, and swallowed it.
Los Angeles Police Detective Robert McCarty interviewed appellant who told him that he had wiped the inside of Darla’s mouth with a paper towel measuring three inches by three inches, wrapped around his index finger. After Detective McCarty showed appellant the piece of paper towel that had been lodged in Darla’s throat, appellant kept saying “it just got lodged so deep. It was just so deep.” Appellant gave inconsistent replies to Detective McCarty’s questions.
Drs. Deakers and Thomas testified that Darla could not have accidentally swallowed a paper towel of the size extracted from Darla’s esophagus. The wadded paper towel was significantly larger than the opening of Darla’s mouth, throat, and esophagus. The doctors opined that an eight-week old infant is incapable of grasping an object and placing it in his or her mouth. Dr. Thomas stated that Darla’s esophagus had been stretched out. Dr. Thomas believed that Darla’s death was caused by deliberate placement of the paper towel in the esophagus. Neither CPR nor the bag valve mask would have caused the paper towel to become wadded or balled up.
Los Angeles Deputy Medical Examiner David Whiteman performed an autopsy on Darla and opined that she was a victim of homicide because she would not have been able to inhale the paper towel into her airway on her own, and because a finger sweep with a paper towel would not have obstructed Darla’s airway. Darla’s airway measured one-quarter of an inch by one-eighth of an inch, while the paper towel measured four and three-quarters inches by three inches by one inch. Absent evidence of the paper towel, Dr. Whiteman would not have been able to determine that a paper towel had been inside Darla’s throat.
Drs. Thomas, Deakers and Whiteman opined that a laryngospasm, which is a spasm of the vocal cords that temporarily stops breathing, would not have caused the paper towel to become lodged in Darla’s esophagus.
The Uncharged Death of Elena
On January 10, 1999, paramedics responded to a call made by appellant’s wife at the time, Grace Florendo. The family lived with appellant’s parents shortly after their daughter Elena’s birth, but moved to their own residence when Elena was three to four weeks old. Grace awoke to appellant’s screams to call 911. Appellant brought nine-week old Elena into the bedroom. She was not breathing. Appellant did a finger sweep on Elena, and performed CPR until an ambulance arrived. Appellant told Los Angeles Police Detective Mark Sommer that Elena had a minimal lung infection. In 1999, Dr. Whiteman performed an autopsy on Elena, which did not reveal any abrasions to her mouth or throat. Although he originally posited cause of death as SIDS, traces of methamphetamine were found in Elena’s liver and blood, causing Dr. Whiteman to report that he could not determine the cause of her death.
The Defense
Appellant testified in his defense that after feeding Darla, he heard her gurgling, so he swept her mouth with his finger, administered four back blows and CPR. He performed a second finger sweep, and Darla inhaled a paper towel wrapped around his finger.
Dr. Michael Weinraub testified that Darla died due to asphyxia caused by upper respiratory obstruction. The obstruction was a foreign body put there by appellant in a state of panic. He also testified that Darla had lower respiratory tract pneumonitis. Dr. Weinraub opined that Elena died primarily from respiratory arrest and secondarily from a viral infection called RSV, which caused a lung to collapse. He also testified that methamphetamine in a child’s system will not cause a respiratory infection. He opined that a laryngospasm may temporarily cause a baby to suck down a piece of paper. But, a child Darla’s age cannot keep suctioning the paper into the esophagus or deep into the lungs. According to Dr. Weinraub, Darla could not have grabbed the paper towel and placed it into her throat. The towel could have been forced into her throat by appellant’s finger sweeps, the administration of CPR, the use of the bag valve mask, the use of the forceps, the laryngoscope, and Dr. Thomas’s fingers.
He believed it was not possible to determine whether Darla’s death was accidental or intentional.
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion in Admitting Facts of the Uncharged Death
Appellant contends that the trial court erred in admitting facts of Elena’s uncharged death because the evidence was not relevant to show intent, knowledge, or absence of mistake. He contends that the similarities between the two incidents were not substantial enough to have probative value; that the cause of death was different for each infant; and there was no paper towel found or homicide investigation in Elena’s death.
Pursuant to Evidence Code section 1101, subdivision (a), character evidence is inadmissible to prove conduct on a specified occasion. But, evidence of conduct may be admitted to prove motive or intent, although it may not be admitted to show a disposition to commit such an act. (Evid. Code, § 1101, subd. (b).)
Admissibility of other crimes evidence depends on the materiality of the facts sought to be proved; the tendency of the uncharged crimes to prove those facts; and the existence of any rule or policy requiring exclusion of the evidence. (People v. Thompson (1980) 27 Cal.3d 303, 315, disapproved on other grounds in People v. Rowland (1992) 4 Cal.4th 238, 260.) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403, superseded by statute on other grounds, as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) The probative value of the evidence must be substantial and not outweighed by the probability that its admission would create a serious danger of undue prejudice. (People v. Kipp (1998) 18 Cal.4th 349, 371.) The trial court’s determination to admit such evidence will not be disturbed on appeal absent an abuse of discretion. (People v. Walker (2006) 139 Cal.App.4th 782, 794-795.)
We find that the similarity between the circumstances surrounding Elena’s uncharged death was sufficient to support the inference that appellant harbored the same intent in each instance. (People v. Steele (2002) 27 Cal.4th 1230, 1244 [the more often a person kills under similar circumstances, the more reasonable the inference the killing was intentional].) That is, appellant was alone with both infants while their mothers were sleeping. The infants were close in age at the time of their death. (Elena was nine weeks old and Darla was eight weeks old.) According to appellant, both infants went to sleep after appellant changed and fed them. He claimed that both infants woke with formula in their mouths and started choking or spitting up. Appellant claimed to have performed finger sweeps in the infants’ mouths. He called out to both mothers to call 911 and he performed CPR on both infants. Moreover, the differences claimed by appellant are too minor to outweigh the similarities. He urges that the cause of death was undetermined for Elena; that no paper was found in her throat; and there was no homicide allegation in Elena’s situation.
Appellant’s citation to People v. Guerrero (1976) 16 Cal.3d 719, 729 (Guerrero), does not assist him, where the charged and uncharged crimes were substantially different. In that case, evidence of an earlier rape could not be admitted to prove that the current victim was killed intentionally rather than accidentally. Moreover, the California Supreme Courtsubsequently retreated from Guerrero’s holding that the distinctiveness of the common marks is a prerequisite to admission of other crimes to prove facts other than identity. In People v. Robbins (1988) 45 Cal.3d 867, 880, superseded by statute on other grounds as noted in People v. Jennings (1991) 53 Cal.3d 334, 387, footnote 13, the court noted, “It has been observed that when evidence of an uncharged offense is introduced to prove intent, the prosecution need not show the same quantum of ‘similarity’ as when uncharged conduct is used to prove identity.” Indeed the least degree of similarity between the crimes is needed to prove intent. (People v. Steele, supra, 27 Cal.4th at p. 1244.)
We conclude that the trial court did not abuse its discretion in determining that Elena’s death was sufficiently similar to Darla’s death to support a strong inference of appellant’s intent to kill Darla. The facts were probative in rebutting his claims that he did not intend to kill Darla, and that her death resulted from accident or mistake.
Furthermore, the probative value of the evidence of Elena’s death was not outweighed by the probability that its admission would create substantial danger of undue prejudice of confusing the issues, or of misleading the jury. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405 [the prejudicial effect of evidence of uncharged crimes is that the jury might be inclined to punish defendant for the uncharged offenses, and the likelihood of confusion is increased because the jury has to determine whether the uncharged offenses had occurred].) Rather, the evidence regarding appellant’s uncharged acts was no stronger and no more inflammatory than the evidence concerning the charged offenses. (Ibid. [uncharged acts regarding molestation of minor, no more inflammatory than evidence regarding molestation of minor’s sister].)
Additionally, when evidence of Elena’s death was presented to the jury, the trial court twice admonished the jury that the evidence could be considered only for the limited purpose of establishing intent, knowledge, or absence of mistake. It also instructed the jury with CALJIC No. 2.50, to the same effect. We presume that the jury followed the instructions given by the trial court. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
CALJIC No. 2.50, as given, provided: “Evidence has been introduced for the purpose of showing that the defendant committed a prior uncharged act other than for which he is on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] The existence of the intent which is a necessary element of the crime charged; [¶] OR [¶] The defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged; [¶] OR [¶] The absence of mistake or accident in the commission of the crime charged. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.”
We conclude that the trial court did not abuse its discretion in admitting the facts of the uncharged crime and in finding that its probative value was not outweighed by the prejudice to appellant.
II. The Trial Court Properly Allowed Cross-examination of the Defense Expert on the Presence of Methamphetamine in Elena’s body
Appellant contends that the trial court erred in allowing cross-examination of the defense expert on the methamphetamine found in Elena’s body because the evidence was not relevant to the expert’s testimony that the cause of Elena’s death was something other than undetermined. We conclude that the trial court did not err.
The scope of cross-examination of an expert witness is especially broad. (People v. Lancaster (2007) 41 Cal.4th 50, 105.) “[A] prosecutor may bring in facts beyond those introduced on direct examination in order to explore the grounds and reliability of the expert’s opinion.” (Ibid.) Evidence Code section 721, subdivision (a) provides in part that an expert witness “may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to . . . the matter upon which his or her opinion is based and the reasons for his or her opinion.” “The scope of cross-examination permitted under [Evidence Code] section 721 is broad, and includes examination aimed at determining whether the expert sufficiently took into account matters arguably inconsistent with the expert’s conclusion.” (People v. Ledesma (2006) 39 Cal.4th 641, 695.) The appellate court reviews the trial court’s control of cross-examination for abuse of discretion. (People v. Adan (2000) 77 Cal.App.4th 390, 394.)
On direct examination, Dr. Weinraub testified that Elena’s death was caused by respiratory arrest and RSV. This was in contrast to Dr. Whiteman’s opinion that the cause of death was undetermined in part because the presence of methamphetamine precluded a finding of SIDS. Dr. Weinraub also testified that methamphetamine in a child’s system will not cause a respiratory infection and does not have a direct effect on RSV. He stated that if Elena had methamphetamine in her system it would not have had an effect on the presence or absence of RSV. Thus, we conclude that the trial court did not abuse its discretion in allowing the prosecutor to ask Dr. Weinraub about matters that called into question his conclusion regarding the cause of Elena’s death. The People properly questioned Dr. Weinraub as to whether he knew, from his reading of Dr. Whiteman’s report, that the presence of methamphetamine in Elena’s system precluded a determination on the cause and manner of death. The trial court properly permitted the prosecutor to challenge the basis and reliability of Dr. Weinraub’s opinion.
We do not agree with appellant that he was prejudiced by the admission of the evidence because the presence of methamphetamine in Elena’s system caused the jury to view him in a negative light. Rather, the People’s focus was that Dr. Weinraub’s conclusions were inconsistent with the conclusions of Dr. Whiteman.
Testimony regarding the presence of methamphetamine was not any more “inflammatory” than the People’s argument that appellant caused Elena to die under circumstances similar to Darla’s death. Finally, it was appellant’s counsel who introduced the issue of methamphetamine on direct examination and who did not submit a limiting instruction on the methamphetamine testimony, although invited to do so by the trial court. (People v. Farley (1996) 45 Cal.App.4th 1697, 1711 [defendant’s failure to request a limiting instruction waived any claim of error on appeal].)
III. The Trial Court Did Not Abuse its Discretion in Permitting Supplemental Argument
Appellant contends that the trial court erred in allowing supplemental argument in response to the jury’s question on the assault charged in count 2. Appellant urges that the trial court should instead have reread the relevant instructions or provided appropriate definitions. We conclude that the trial court did not abuse its discretion.
Pursuant to section 1138, when the jury requests to be informed on any point of law arising in the case, the information required must be given to it. The trial court has a duty to help the jury understand the legal principles it is asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) When the instructions are full and complete, the trial court has discretion to determine what additional explanations are sufficient to satisfy the jury’s request for information. (Ibid.) The trial court must consider how it can best aid the jury and whether further explanation is desirable. (Ibid.) We review the trial court’s decision not to offer additional instructions for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
Our review of the record compels us to conclude that the trial court did not abuse its discretion in allowing further argument, rather than offering additional instructions or providing additional definitions. The jury submitted a note to the trial court on June 9, 2006, stating: “We are unable to reach a consensus on any counts. Two days ago we reached a verdict on Count 2 but one juror now wishes to change her vote. This juror has said from day one that she will never agree to a verdict of murder. She does accept the definitions in the jury instructions. She really doesn’t listen or join into discussions and is unable to state why [she] feels there is reasonable doubt. We are stuck at 11 to 1.” After stating that it intended to reread CALJIC Nos. 1740 and 1741, regarding the duty to deliberate and to discuss evidence and instructions with other jurors, the trial court questioned the foreperson regarding the challenged juror’s participation in deliberations. The foreperson replied that the juror “pours over the jury instructions” but was not receptive to the other jurors’ explanation of the instructions. The foreperson also stated that the juror had problems with definitions and semantics in the jury instructions and never reached the arguments of counsel. The foreperson stated that it would not be helpful at that point to hear additional argument or for the court to reread the instruction regarding the obligation of the jurors to discuss evidence and instructions with other jurors. The trial court then questioned each juror individually. Four or five of the jurors believed that if the jury was able to submit further questions on the instructions, it might be able to return a verdict. The trial court then invited the jury to submit further questions and reread CALJIC Nos. 1740 and 1741 to the jury.
The next court day, June 12, 2006, the jury submitted the following two questions. “Count 1: If a person doesn’t die of a natural cause (disease, old age, etc.), are we to assume that the person was killed? Count 2: How does the court define ‘unlawfully committing’ an act and ‘physical force’ in regards to determining whether an assault was made?” The trial court carefully considered the questions given the preceding discussions with the individual jurors, and concluded that the jury needed factual rather than definitional explanations. Out of the presence of the jury, the trial court noted that with respect to count 1, the jury did not use the word “murder,” but used the word “kill.” The trial court therefore decided that it would give both counsel the opportunity to argue what appeared to be a factual issue.
As to the second question, the trial court stated that it had given the jury ample instructions with respect to the definitions of “unlawfully committing an act” and “physical force,” in regard to determining whether an assault was made, and that the jury appeared to be having some difficulty understanding instructions. Therefore, the trial court decided that it would not reread the instructions again, but would permit each side the opportunity to argue the point. The trial court stated that “this jury would like some edification, not the court simply rereading the instructions . . . it appears to this court they are having difficulty with respect to applying the facts to the instructions, and it may well be helpful for you folks to argue.”
The trial court then informed the jury that “rather than just reread instructions to you, which you can probably do yourself, I’m going to permit the lawyers a total of 15 minutes each, no more, to argue each of the questions.”
We conclude that the trial court did not abuse its discretion by referring the jury back to the standard instructions on assault for the meaning of the terms “unlawful” and “physical force” (which in that context do not have technical legal meanings) and instead allowing the parties to argue the law as applied to the facts. Appellant’s citation to People v. Solis (2001) 90 Cal.App.4th 1002, 1013 does not assist him, where the trial court refused to explain the word “sustained,” despite the jury’s specific request that the definition be explained with more depth. Here, the trial court not only instructed the jury to reread the instructions, but also allowed counsel to argue the facts as applied to the law. Also, People v. Gurule (2002) 28 Cal.4th 557, cited by appellant, simply holds that the trial court is not required under section 1138 to satisfy the jury’s request for a rereading of argument. (People v. Gurule, supra, at p. 649.) Our Supreme Court held that the trial court did not abuse its discretion in concluding that it was not appropriate for the arguments of counsel to be reread, especially since trial counsel had misstated the law during his argument. (Id. at p. 649.) Here, we conclude that the trial court did not abuse its discretion in concluding that it was appropriate for counsel to provide additional argument.
We note that in People v. Young (Nov. 13, 2007, C054130) __Cal.App.4th __ [2007 WL 3349282] which is not yet final, the Third Appellate District held that the trial court properly exercised its discretion pursuant to section 1094 to depart from the order of a jury trial by reopening closing argument upon being faced with a deadlocked jury.
Nor do we agree with appellant that any error was prejudicial because the People misstated the law pertaining to assault. Appellant urges that the People ignored the knowledge and general intent elements in arguing that “the act, irrespective of intent and effect, was sufficient to find guilt.” We find that the prosecutor did address knowledge and intent properly by stating that assault was “the application of force that is unlawful” and that appellant’s act of picking up the paper towel, and placing it in Darla’s throat was an application of physical force constituting an unlawful assault, “[a]pplying that paper towel to her throat had no lawful basis. That’s what that means. There was no reason to stick that paper towel down her throat.” The prosecutor did not misstate the law on assault, rather the jury was told that appellant could be found guilty if they determined, beyond a reasonable doubt, that he had the necessary general intent and the knowledge that as a direct, natural and probable consequence of placing a paper towel into the mouth of an eight-week-old baby, that physical force would be applied to Darla.
Even if the trial court erred in allowing the parties to submit further argument, the error was harmless beyond a reasonable doubt. If the jury had believed appellant’s actions were accidental, they would not, under the instructions, have found general criminal intent. (Chapman v. California (1967) 386 U.S. 18, 24.)
We conclude that the trial court did not abuse its discretion in permitting supplemental argument.
IV. The Trial Court Did Not Have a Duty to Instruct on Simple Assault as a Lesser Included Offense to Assault on a Child Resulting in Death
Appellant contends that his conduct in using a paper towel to clear Darla’s airway constituted substantial evidence to support an instruction on simple assault. We disagree.
When the statutory elements of the charged offense cannot be committed without necessarily committing another lesser offense, the other offense is a necessarily included lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.) The trial court must instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. (Id. at p. 162.) But, the trial court is not obligated to instruct on theories that have no such evidentiary support. (Ibid.) “‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.” (Ibid.)
Assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another. (§ 240.) Section 273ab criminalizes an assault on a child likely to produce great bodily harm, resulting in the child’s death. Because it is impossible to commit the greater offense of assault on a child resulting in death, without necessarily committing the lesser crime of assault, the latter is a lesser included offense. (People v. Basuta (2001) 94 Cal.App.4th 370, 391-392.)
Here, there is no evidence from which the jury could have concluded that the lesser offense was committed but the greater was not. Appellant urges that substantial evidence supported an instruction on simple assault because he testified that he used the paper towel to clear Darla’s airway. He reasons that the jury could have found that act was unlikely to cause great bodily injury and that Darla died from either inhaling the paper or improper attempts to resuscitate her. But, while appellant claims he lawfully tried to help Darla by clearing her airway and later resuscitating her, an assault is an unlawful attempt to commit a violent injury. (§ 240.) If the jury believed appellant’s testimony, it could not have found that his efforts to help Darla constituted an unlawful attempt to commit a violent injury on her. Thus, there is no substantial evidence that appellant committed an assault upon Darla while attempting to either clear her airway or resuscitate her. Accordingly, the trial court was not required to instruct as to the lesser included offense of assault.
V. Appellant Was Properly Convicted of Both Counts 2 and 3
Appellant next contends that his conviction for child endangerment, count 3, should be reversed because it is a lesser included offense to assault on a child causing death, count 2. We do not agree.
A defendant cannot be convicted of both an offense and a lesser offense that is necessarily included within that offense, based on his or her commission of the same act. (People v. Pearson (1986) 42 Cal.3d 351, 355.) “‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ [Citation.]” (Ibid.)
In deciding whether multiple convictions of charged offenses is proper, the trial court must consider the “statutory elements” test. (People v. Reed (2006) 38 Cal.4th 1224, 1229.) Under the “statutory elements” test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. (Id. at p. 1227.)
Section 273ab, which appellant claims to be the greater offense, provides that: “Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life.”
Section 273a, subdivision (a), which appellant claims is the lesser offense, proscribes four types of conduct: any person who, under circumstances or conditions likely to produce great bodily harm or death, (1) willfully causes or permits any child to suffer, or (2) inflicts thereon unjustifiable physical pain or mental suffering, or (3) having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or (4) willfully causes or permits that child to be placed in a situation where his or her person or health is endangered. (People v. Sargent (1999) 19 Cal.4th 1206, 1215.)
The definition of child abuse broadly includes active and passive conduct, including child abuse by direct assault and child endangering by extreme neglect. (People v. Sargent, supra, 19 Cal.4th at pp. 1215-1216.) Because a person may violate section 273a, subdivision (a) through passive rather than assaultive action, section 273a, subdivision (a) is not a necessarily lesser offense of section 273ab, which requires an assault by means of force on behalf of the defendant.
Accordingly, appellant was properly convicted of both counts 2 and 3.
VI. The Matter Should be Remanded for Resentencing on Count 3
Appellant next contends that the trial court’s imposition of the upper term on count 3 and its enhancement violated appellant’s constitutional rights to jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
In Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond a prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at pp. 301-304.) In Cunningham, the United States Supreme Court held that California’s procedure for selecting upper terms violated the defendant’s Sixth and Fourteenth Amendment right to jury trial because it gave to the trial judge, rather than the jury, authority to find the facts that render a defendant eligible for an upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 860.)
Cunningham error is harmless if the appellate court “concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” (People v. Sandoval (2007)41 Cal.4th 825, 839.)
Child abuse, section 273a, subdivision (a), proscribes four types of conduct: any person who, under circumstances or conditions likely to produce great bodily harm or death, (1) willfully causes or permits any child to suffer, or (2) inflicts thereon unjustifiable physical pain or mental suffering, or (3) having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or (4) willfully causes or permits that child to be placed in a situation where his or her person or health is endangered. (People v. Sargent, supra, 19 Cal.4th at p. 1215.)
In this case, the trial court imposed the upper term because the defendant “took advantage of a position of trust . . . [and] the offense involved a high degree of cruelty, viciousness, and callousness.” The trial court made no other comments regarding the sentence.
As a general rule, a fact that is an element of a crime may not be used to impose the upper term. (Cal. Rules of Court, rule 4.420(d).) Because one of the elements of section 273a, subdivision (a) is “having the care or custody of any child,” the trial court’s use of the appellant’s position of trust seems to be an impermissible dual use of facts.
Also, we cannot say that the jury would have found beyond a reasonable doubt that the offense involved a high degree of cruelty, viciousness, and callousness, because the jury deadlocked on premeditated murder. And, appellant’s defense was that it was an accident--he was trying to clear the infant’s mouth with a paper towel and she sucked it in. Although there was sufficient evidence upon which the jury could have found that appellant’s actions involved a high degree of cruelty, viciousness, and callousness, we cannot conclude that it would have done so. (People v. Webber (1991) 228 Cal.App.3d 1146, 1169 [a factor in aggravation must have the effect of making a crime distinctively worse than the ordinary].)
Accordingly, we cannot say that any constitutional error was harmless, and the matter must be remanded for a new sentencing hearing on count 3.
VII. Appellant is Entitled to Presentence Conduct Credit
The People concede that appellant, sentenced to an indeterminate term of 25 years to life on count 2, is entitled to presentence custody credit. (People v. Philpot (2004) 122 Cal.App.4th 893, 907-909 [a defendant with a nonviolent third strike, sentenced to an indeterminate term, may receive presentence conduct credits].) Accordingly, the abstract of judgment shall be modified to reflect a total of 391 days of presentence credit, consisting of 340 days in actual custody and 51 days in conduct credits.
VIII. The Abstract of Judgment Shall be Modified
The People concede that the abstract of judgment erroneously states that appellant was convicted of count 3, violating section 273a, subdivision (b), rather than section 273a, subdivision (a). It also incorrectly states that appellant was convicted on a plea, rather than by jury. And, the abstract of judgment does not reflect the stayed sentence on count 3.
The abstract of judgment shall be modified to reflect that appellant was convicted of violating section 273a, subdivision (a), by jury, and the trial court stayed sentence on that count. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2.)
DISPOSITION
The matter is remanded with directions to the trial court to hold a new sentencing hearing on count 3. The abstract of judgment is modified to reflect that appellant shall be awarded a total of 391 days of presentence credit, consisting of 340 days in actual custody and 51 days in conduct credits. The abstract of judgment is corrected to reflect that appellant was convicted of violating section 273a, subdivision (a), by jury, and the trial court stayed sentence on count 3. The trial court is ordered to send a certified copy of the modified and corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.