P. v. Arellano

Filed 9/27/06 P. v. Arellano CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed, as modified.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Carlos Arellano (defendant) of second degree murder (Pen. Code, § 187, subd. (a)^[1]), assault on a child under eight years of age causing death (§ 273ab), and four counts of child abuse (§ 273a, subd. (a)). As to the four counts of child abuse, the jury found true the allegation that defendant personally inflicted great bodily injury on a child under the age of five (§ 12022.7, subd. (d)). The trial court sentenced defendant to state prison for a term of 25 years to life plus a consecutive term of 21 years.

On appeal, defendant contends that there was insufficient evidence to support his four convictions for child abuse; the trial court erred in denying his request for an instruction on voluntary intoxication; and, under Blakely v. Washington (2004) 542 U.S. 296, imposition of the upper term sentence on one of the counts of child abuse, based on facts not found by the jury, violated his constitutional rights to a jury trial and due process under the Sixth and Fourteenth Amendments. We hold that substantial evidence supports defendant’s child abuse convictions, the trial court properly denied defendant’s requested voluntary intoxication jury instruction, and defendant’s claim that his constitutional rights were violated by the trial court’s imposition of the upper term sentence is without merit under People v. Black (2005) 35 Cal.4th 1238. Accordingly, we affirm the judgments of conviction.

Defendant’s abstract of judgment fails to reflect the consecutive three year term in state prison the trial court imposed for defendant’s conviction for child abuse (§ 273a, subd. (a)) on count 4 and the accompanying enhancement for personally inflicting great bodily injury (§ 12022.7, subd. (d)). We order the abstract of judgment modified to reflect this sentence.

BACKGROUND

In August 2002, defendant and Erika Garcia[2] began dating. Erika had a child -- Jonny -- who was born earlier that year on January 9, 2002. Defendant was not Jonny’s father. Just after Thanksgiving in 2002, defendant, Erika, and Jonny moved in with defendant’s mother, Emigdia Arellano, and his stepfather, Abraham Carrillo, Sr., in their mobile home in Rosemond. In April 2003, defendant, Erika, and Jonny moved in with Erika’s mother, Berta Castillo, in her house in Lancaster.

At 6:00 a.m., on June 12, 2003, Erika dropped off defendant at work. She and Jonny then went to defendant’s parents’ house where they spent the day.[3] Jonny ate breakfast and lunch and played with a puppy and with some children who lived there. Although Jonny threw up that day and had been sick with a cold the previous week, he seemed to be feeling better. He was no longer acting sick and had more energy to run around.

At about 4:30 p.m., defendant arrived at the house after work. Shortly thereafter, defendant, Jonny, and others ate dinner. After dinner, defendant drank a beer outside. Then, defendant, Erika, and Jonny drove to a McDonalds “just to go out.” Jonny ate a cheeseburger. On the way back from McDonalds, Erika dropped off defendant at his friend George’s house.

When defendant had not returned to his parents’ house after about an hour, Erika drove to George’s house -- two streets over in the same mobile home park -- to look for defendant. Not finding defendant, Erika went back to defendant’s parents’ house. When she arrived, she saw defendant in the front yard holding Jonny “from the bottom of his armpits.” Defendant was shaking Jonny -- not hard, “just . . . trying to wake him up.” Defendant said to Erika, “Baby, what’s wrong with Jonny?” Erika grabbed Jonny and Jonny’s eyes rolled back in his head. Screaming and crying, Erika ran inside the house with Jonny. She told defendant’s mother what was wrong with Jonny. Jonny was having difficulty breathing, as if he was choking on something. An ambulance was called and defendant’s mother and a person visiting next door attempted to resuscitate Jonny to no avail.

Firefighters from the Kern County Fire Department arrived shortly after 9:00 p.m. Jonny had no pulse, was not responsive, and was not breathing. He was taken to Antelope Valley Hospital and then to Children’s Hospital in Los Angeles by helicopter. Jonny remained at Children’s Hospital for one day and then was disconnected from life support.

Dr. James Ribe, a Senior Deputy Medical Examiner with the Los Angeles County Coroner’s Office, performed an autopsy on Jonny’s body. Dr. Ribe testified that “abusive head trauma” caused Jonny’s death, and that “battered child syndrome” was a contributing factor. Abusive head trauma is head trauma suffered at the hands of an adult caregiver. It can be inflicted by shaking a child violently, but not by applying a foreign object to the head. According to Dr. Ribe, shaking a small child can lead to the child’s death because it damages the child’s brain. He explained that when the brain sustains extremely severe and extensive injury, a child stops breathing cutting off oxygen to the brain and leading to irreversible damage. Battered child syndrome describes multiple injuries inflicted on a child by an adult caregiver at different ages.

Dr. Ribe testified that Jonny had a subdural hematoma on the left side of his brain. He also had tremendous swelling of his brain, “which would be fatal.” The subdural hematoma was not an ordinary subdural hematoma -- it was spread out over most of the left half of Jonny’s brain rather than in just one spot and it was “inner-hemispheric,” meaning that it was in between the two halves or hemispheres of the brain. Subdural hematomas of the type Jonny suffered are almost always seen only in instances of child abuse or abusive head trauma. They are very unusual in other situations. Jonny also had a scar on the lining of his skull that indicated that he had a small subdural hematoma weeks or months earlier that he had survived. Jonny could not have suffered his particular head injuries from being dropped or falling off the top of a bunk bed.

Dr. Ribe found two small bruises on Jonny’s left forehead, one of which was deep enough to reach the skull underneath; a very obvious, large, swollen, purple bruise underneath Jonny’s left jawbone; two small bruises on Jonny’s right cheek that were faint and not easy to see; a bruise on Jonny’s upper abdomen that appeared to be fading; and two bruises on the back of Jonny’s left upper arm. Jonny’s tongue had lacerations and bruises on both sides. The injuries to Jonny’s tongue showed moderately severe blunt force trauma to his lower face.

The autopsy also revealed internal injuries. Dr. Ribe found a bruise on the right side of Jonny’s rib cage and a bruise on his right lower back close to the backbone. There also was a small tear on the under surface Jonny’s liver. The injury to Jonny’s liver was not very serious, and “clearly” did not kill him. The injury appeared to be a few to several days old. About an ounce of blood from the liver injury bled into Jonny’s abdomen. Jonny could not have sustained the injury from falling on something -- toddlers are “very rubbery,” they fall all the time and when they fall on something they bounce right off it. According to Dr. Ribe, Jonny sustained the injury to his liver when “[s]omebody punched him in the stomach.” Dr. Ribe would expect a child with a liver laceration to be fussy, to not want to eat -- especially at meal times, and to vomit.

Dr. Ribe also found a large number of rib fractures sustained to the front, back, and both sides of Jonny’s rib cage. A person has a total of 24 ribs -- 12 on each side. Jonny suffered 22 rib fractures just on the left side of his rib cage. Several of the fractures were “repetitive fractures, meaning that the bone has been broken again in the same place.” The rib fractures ranged from one day to several weeks old. None of them had totally healed. Once a rib fracture has totally healed, it is no longer visible.

It is very hard to break a child’s ribs because they are bendable. To break a child’s ribs, very strong and very sudden force must be applied. Dr. Ribe described the “lever effect” -- one of the ways a child can suffer rib fractures. The lever effect results when an adult violently grabs a child’s chest and squeezes it very violently “while he’s either going to shake, slam or throw the baby” causing the ribs to snap. When a medical examiner finds abusive head trauma, the first thing he or she looks for is posterior rib fractures consistent with the lever effect.

On June 13, 2003, Los Angeles County Sheriff’s Department Sergeant Mitch Loman and Detective Gary Sica interviewed defendant.[4] Among other things, defendant stated that Erika dropped him off at his friend George’s house where he drank three “Cobras.” Upon returning to his parents’ home, defendant found Jonny crying on the front steps. Defendant picked up Jonny and looked for Erika. As Erika pulled in, Jonny collapsed against defendant. Defendant was scared and shook Jonny. He did not shake Jonny hard, “kinda like an easy shake.” Erika took Jonny from defendant and ran into the house. Defendant called the fire department.

On June 17, 2003, Sergeant Loman interviewed defendant again. Defendant’s version of the events was essentially consistent with what he told Sergeant Loman on June 13, 2003. Two Kern County detectives then arrested defendant. In a subsequent interview that day, defendant told the Kern County detectives that he had dropped Jonny.

Also on June 17, 2003, Sergeant Loman interviewed Erika. Sergeant Loman informed Erika of the autopsy results. She told him of an incident related to her by defendant where Jonny supposedly fell from a bunk bed. According to Erika, after that incident, Jonny cried and was afraid of defendant. After Erika became pregnant[5], defendant became less patient with Jonny. He was mean to Jonny and yelled at him. At the same time, Jonny did not want to go to defendant, he was very clingy towards Erika, and he became scared when defendant came home from work.

Erika told Sergeant Loman that defendant was jealous of Jonny because of the attention Jonny received. Erika demonstrated how defendant would make contact with the side of Jonny’s face, causing Jonny’s head to move. She told the sergeant that defendant would roughly dump Jonny onto the bed. Erika stated that Jonny had bruises on his lower back and ribs that looked like finger marks. When Erika asked defendant about the bruises, he said that Jonny had fallen. When Erika and defendant argued, defendant would take Jonny outside of the room and Erika would hear Jonny crying. Erika told “the detectives” that defendant would pinch Jonny’s face very hard, causing bruises. According to Erika, defendant’s mother told defendant not to be so rough with Jonny. Erika told Sergeant Loman that on the way to the hospital, defendant told her that “[w]e have to get our stories straight.”

At trial, Erika denied that defendant hit, punched, or kicked Jonny or that Jonny had bruises on his lower back and ribs. She testified that she lied to the detectives, that the detectives told her what to say, and that the detectives coerced her false statements by screaming at her and banging on the table. Erika told the officers what they wanted to hear so they would let her go.

On June 19, 2003, Sergeant Loman interviewed defendant again.[6] During the interview, defendant told the sergeant that he drank a 24-ounce Budweiser beer in his car after dinner and that he was “buzzed” when he went to McDonalds with Erika and Jonny. On the way back home, Erika dropped off defendant at George’s house. There, defendant shared two 40-ounce beers with at least one other person.

When defendant returned home, he was drunk. Jonny was on the porch crying. Defendant picked up Jonny and said, “Where the fuck’s your mother at?” Jonny “kept on crying, crying, crying.” Defendant asked Jonny to be quiet. Defendant shook Jonny “a little bit” -- for about three to five seconds. Sergeant Loman asked defendant if he thought he had shaken Jonny too hard. Defendant responded, “Yeah, I think I did. I was buzzed. I really, I thought I didn’t shake him hard. ‘Jonny, please be quiet, Jonny. I want to look for your mother’.” Jonny leaned on defendant and collapsed, and defendant got scared and shook him again to try to wake him. Erika took Jonny from defendant and ran in the house. Defendant told Sergeant Loman that he did not intend to shake Jonny hard, that he just did, and that he did not know that it would hurt Jonny.

Defendant testified in his own behalf. Among other things, defendant testified that on June 12, 2003, he drank a 24-ounce beer in his car after dinner. Later, he spent an hour or two at George’s house after Erika dropped him off. During that time, he split two 24- or 26-ounce King Cobra beers with one or two other persons. Defendant testified that King Cobra beer contains more alcohol that other beers, but he did not feel drunk when he walked to his parents’ home from George’s house. Defendant testified, “I felt buzzed but I didn’t -- I felt normal.”

During cross-examination, defendant testified that he was “kind of drunk” when he returned from George’s house, but that he did not feel drunk. The prosecutor asked if he had any problems talking. Defendant responded, “I always have problems when I’m drunk talking.” The prosecutor asked defendant if he had any problems walking. Defendant responded, “Not that I remember.” The prosecution then asked defendant to explain what he meant by his testimony that he was “kind of drunk.” Defendant explained, “I felt buzzed but I felt normal.”

When defendant arrived at his parents’ home, Jonny was on the steps of the front porch wheezing and crying “as if he was choking.” Defendant did not know what was wrong with Jonny and asked him, “Where the fuck is your mother?” Defendant picked up Jonny and walked around to see if Erika was arriving in the car. He tapped Jonny on the back “[b]ecause I wanted him to be quiet so he won’t cry no more.” He did nothing to determine if Jonny was choking. Defendant shook Jonny back and forth to stop him from crying. Defendant shook Jonny three to five times, but he did not shake Jonny real hard. Jonny continued to cry after defendant shook him, but went “limp” seconds later.

Erika arrived in the car as Jonny went limp. Defendant walked up to Erika and said, “Baby, what’s wrong with Jonny?” Erika grabbed Jonny and took him inside. Defendant’s mother and others attempted to resuscitate Jonny. At the hospital, defendant told Erika to get her story straight. Defense counsel asked defendant why he told Erika that she needed to get her story straight. Defendant responded, “I don’t know. It just popped out in my head. I was still drunk.” Defense counsel pointed out that defendant had earlier testified that he was not drunk, only “buzzed.” Defendant responded, “I know but I felt normal. I just said it out of the blue.”

Defendant testified that he loved Jonny. He liked Jonny’s “chunky cheeks” and pinched them a lot. In response, Jonny would laugh and hit defendant’s hand. Defendant denied ever taking anything out on Jonny because he was angry with Erika. He denied ever punching, slapping, kicking, or throwing Jonny down on the ground. He admitted, however, that he had once picked up Jonny and let go of him so that he would fall on the couch. When defendant would pick up Jonny by placing his hands around Jonny’s rib cage, he would not squeeze hard, and Jonny never screamed or cried or otherwise indicated that his ribs were injured. Once, Jonny fell off a bunk bed in defendant’s presence. Jonny cried and defendant picked him up. Jonny never indicated that he was injured in the fall. Jonny sometimes had unexplained bruises on his arms.

Several of defendant’s relatives testified that defendant loved Jonny, that they never saw defendant abuse Jonny, and that Jonny was not afraid of defendant. Defendant’s stepfather testified that he did not see any bruises or injuries on Jonny during the time that defendant, Erika, and Jonny lived with him. He testified that defendant loved Jonny a lot, that he never saw defendant hit or yell at Jonny and never observed anything wrong, and that Jonny was not afraid of defendant. Defendant’s mother testified that defendant showed concern for Jonny; that she never saw defendant mistreat, hit, or yell at Jonny; and that Jonny did not appear to be afraid of defendant. Defendant’s sister, Cristal Carrillo, testified that she never saw anyone strike or mistreat Jonny and never saw defendant yell at Jonny. Erika’s mother testified that defendant loved Jonny, that defendant never yelled at or abused Jonny, and that Jonny was not afraid of defendant. Erika’s sister, Maria Garcia, testified that during the time that defendant, Erika, and Jonny lived with her, defendant and Jonny appeared to have a normal, healthy father/son relationship. She never saw defendant mistreat, abuse, spank, or discipline Jonny. Jonny did not appear to be afraid of defendant. A long-time friend of defendant’s, Rosalinda Gomez, testified that when she saw defendant interact with Jonny, defendant appeared to be a good father to Jonny -- he treated Jonny as if Jonny was his own child.

DISCUSSION

I. Evidence Supporting Defendant’s Convictions for Child Abuse

A. Standard of Review

“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]” (People v. Shakhvaladyan (2004) 117 Cal.App.4th 232, 236, disapproved on another point in People v. Hudson (2006) 38 Cal.4th 1002, 1011, fn. 3.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (See People v. Jones (1990) 51 Cal.3d 294, 314.) Reversal on the ground of insufficient evidence “‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Shakhvaladyan, supra, 117 Cal.App.4th at p. 237.) “The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11; citing, inter alia, Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)

B. Application of Relevant Principles

Defendant alleges that his four convictions for child abuse in violation of section 273a, subdivision (a)[7] (counts three, four, five, and six), are based on the subdural hematomas Jonny suffered prior to June 12, 2003, Jonny’s liver laceration, and two of Jonny’s broken ribs. Defendant contends that the evidence is insufficient to establish that he -- as opposed to another member of the household -- was responsible for these injuries. Defendant notes that no witness testified that he inflicted these injuries and contends that because Erika and others in Jonny’s life treated Jonny and his physical condition indifferently, “it is not at all clear [he] was responsible for the injuries.” Sufficient evidence supports the convictions.

In closing argument, the prosecutor initially argued that the injuries that served as the basis for the four counts of child abuse were the older hematoma Jonny suffered, Jonny’s liver laceration, and two of Jonny’s rib fractures. The prosecutor explained that one of the pertinent rib fractures was the oldest fracture in the coroner’s report. The second rib fracture was one of the numerous rib fractures sustained between the oldest rib fracture and the acute rib fractures. The prosecutor explained to the jurors that they could use any of the fractures, but they had to agree on one of them. Later, the prosecutor corrected herself, informing the jurors that they did not have to rely on the four injuries she had identified, they only had to find four instances of child abuse -- four rib fractures (other than the acute or one-day old rib fractures) were sufficient -- during the relevant time period. The trial court instructed the jury that, in order to find defendant guilty of the four counts of child abuse, it had to “unanimously agree upon the commission of the same specific act or acts constituting the crime within the period alleged,” but that it did not have to state in its verdict the particular act agreed upon.

The evidence adduced at trial was sufficient to support defendant’s four counts of child abuse. Sergeant Loman testified that Erika told him about a claim defendant made that on a prior occasion Jonny had fallen from a bunk bed. According to Erika, after that alleged fall, Jonny was afraid of defendant. She told Sergeant Loman that after she became pregnant, defendant was less patient with Jonny. She also told the sergeant that defendant was mean to Jonny and yelled at him. At the same time, Jonny did not want to go to defendant, he was very clingy towards Erika, and he became scared when defendant came home from work. Erika told Sergeant Loman that defendant was jealous of Jonny because of the attention that Jonny received. According to Erika, defendant struck the side of Jonny’s face, causing Jonny’s head to move. She also stated that defendant would roughly dump Jonny onto the bed. Erika stated that Jonny’s had bruises on his lower back and ribs that looked like finger marks. When Erika asked defendant about the bruises, he said that Jonny had fallen. When Erika and defendant argued, defendant took Jonny outside of the room and Erika would hear Jonny crying. Defendant pinched Jonny’s face very hard, causing bruises. Defendant’s mother told defendant not to be so rough with Jonny. Defendant admitted that he pinched Jonny’s cheeks, that he had once picked up Jonny and let go of him so that he would fall on the couch, and that he shook Jonny too hard.

II. Defendant’s Requested Jury Instruction on Voluntary Intoxication

During a discussion of jury instructions, defendant requested an instruction on voluntary intoxication on the grounds that there was evidence that he drank beer, that he was drunk, and that he was “buzzed.” The trial court denied defendant’s request, stating, “The problem is there was no evidence that I heard -- and I carefully listened for it -- of any evidence as to the specific effect it had on his mental abilities and, therefore, the court denies that request.” Defendant contends that his testimony that he was “buzzed” and drunk was sufficient evidence of mental impairment to support his requested instruction and that the trial court erred in refusing the instruction. The trial court properly denied defendant’s requested instruction.

Evidence of voluntary intoxication is “‘admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.’ (§ 22, subd. (b); see People v. Mendoza [(1998) 18 Cal.4th 1114], 1126 [77 Cal.Rptr.2d 428, 959 P.2d 735].) Accordingly, a defendant is entitled to an instruction on voluntary intoxication ‘only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s “actual formation of specific intent.”’ (People v. Williams (1997) 16 Cal.4th 635, 677 [66 Cal.Rptr.2d 573, 941 P.2d 752].)” (People v. Roldan (2005) 35 Cal.4th 646, 715.) “[A]n intoxication instruction is not required when the evidence shows that a defendant ingested drugs or was drinking, unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent or attain the requisite mental state. (People v. Williams (1988) 45 Cal.3d 1268, 1311-1312 [248 Cal.Rptr. 834, 756 P.2d 221].)” (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.)

Defendant described his alcohol consumption on June 12, 2003, in interviews with law enforcement and at trial. Considered together, defendant’s statements to Sergeant Loman show that, at most, defendant consumed a 24-ounce beer prior to driving to McDonald’s and that he shared two or three 40-ounce beers at George’s house prior to returning to his parents’ house. In those interviews, defendant claimed to be “buzzed” or drunk. In his testimony at trial, defendant responded “No” when defense counsel asked him if he felt drunk when he walked home from George’s house. Defendant explained that he felt “buzzed” when he arrived home, but that he felt “normal.” Later, when defendant claimed that he was still drunk when he told Erika that she needed to get her story straight, defense counsel pointed out that defendant had earlier testified that he was not drunk, only “buzzed.” Defendant responded, “I know but I felt normal. I just said it out of the blue.” During cross-examination, defendant testified that he was “kind of drunk” when he returned from George’s house, but that he did not feel drunk. The prosecutor asked if he had any problems talking. Defendant responded, “I always have problems when I’m drunk talking.” The prosecutor asked defendant if he had any problems walking. Defendant responded, “Not that I remember.” The prosecution then asked defendant to explain what he meant by his testimony that he was “kind of drunk.” Defendant explained, “I felt buzzed but I felt normal.” The evidence of defendant’s alleged intoxication failed to show that defendant was intoxicated or that any intoxication affected his mental state. (People v. Roldan, supra, 35 Cal.4th at p. 715; People v. Ivans, supra, 2 Cal.App.4th at p. 1661.) Accordingly, the trial court properly refused defendant’s request for a voluntary intoxication instruction.

III. Defendant’s Upper Term Sentence

Defendant contends that, under Blakely v. Washington, supra, 542 U.S. 296, the imposition of the upper term sentence for one of his child abuse convictions, based on facts not found by the jury, violated his Sixth and Fourteenth Amendment rights to a jury trial and due process. Defendant’s contention is without merit. In People v. Black, supra, 35 Cal.4th 1238, our Supreme Court held that Blakely v. Washington does not invalidate upper term sentences under California’s determinate sentencing scheme. (People v. Black, supra, 35 Cal.4th at p. 1244; People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) We are bound by the decision in People v. Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Hill, supra, 131 Cal.App.4th at p. 1103.)

IV. Defendant’s Abstract of Judgment

The trial court sentenced defendant to a consecutive three year term in state prison for his conviction for child abuse (§ 273a, subd. (a)) on count 4 and accompanying enhancement for personally inflicting great bodily injury (§ 12022.7, subd. (d)). Neither the original nor the amended abstract of judgment reflects the sentence on count 4. The parties agree that we may correct this apparent clerical error. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.) We order the abstract of judgment modified to reflect the consecutive three year term in state prison on count 4.

DISPOSITION

The judgment is affirmed. The abstract of judgment is ordered modified to reflect the consecutive three year term in state prison on count 4.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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[1] All statutory citations are to the Penal Code unless otherwise noted.

[2] Defendant and Erika Garcia married on February 6, 2005, and she assumed his last name. For clarity, we refer to this witness as “Erika.”

[3] At that time, defendant was 20 years old, Erika was 18 years old, and Jonny was 17 months old.

[4] A tape recording of the interview was played for the jury.

[5] Defendant told Sergeant Loman that Erika was pregnant with his child.

[6] A tape recording of the interview was played for the jury.

[7] Section 273a, subdivision (a) provides, “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”