P. v. Kao

 

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Kao CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   WEILI KAO,                           Defendant and Appellant.

C072749   (Super. Ct. No. 11F05472)

 

 

 

            This case
comes to us pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende).  Having reviewed the record as required by Wende,
we note an error requiring correction of the abstract and affirm the judgment.

            We provide
the following brief description of the facts and procedural history of the
case.  (See People v. Kelly
(2006) 40 Cal.4th 106, 110, 124.)

>FACTUAL AND PROCEDURAL BACKGROUND

            On May 11, 2004, defendant Weili
Kao was at home with her stepdaughter, six-year-old Truly Lo and defendant’s 16-month-old
biological daughter while her husband, Truly’s father, was working in the Bay
Area.  Defendant beat Truly with a
plastic hanger, pulled her ears, and slapped her.  She also knocked Truly to the floor twice,
causing her head to strike the floor both times and strangled her to the point
of unconsciousness.  Defendant later put
Truly to bed.  

            Defendant
was unable to wake Truly the following morning.  She called two friends and asked the
difference between a sleeping and unconscious child.  After one of the friends advised her to
take Truly to the hospital, defendant changed her clothes, dropped her own
child off at her sister’s house, and then took Truly to the hospital.  As a result of the attack, Truly was in a
persistent vegetative state, but managed to breathe on her own after life
support was removed three days later.  

            In case No. 04F04427,
defendant was convicted by a jury of three counts of href="http://www.fearnotlaw.com/">corporal injury to a child (Pen. Code, § 273d,
subd. (a))href="#_ftn1" name="_ftnref1"
title="">[1]
and one count of willful cruelty to a child (§ 273a, subd. (a)) with
enhancements for great bodily injury (§ 12022.7) and personal use of a
deadly weapon (§ 12022, subd. (b)(1)), and sentenced to 16 years
six months in state prison.  

            On December 23, 2010, Truly died
as a result of the injuries
inflicted by defendant.  

            Defendant
was charged with murder (§ 187) and assault on a child under the age of
eight with force likely to produce great bodily injury resulting in death (§ 273ab,
subd. (a)) and enhancements for personal use of a deadly weapon (§ 12022,
subd. (b)(1)).  After the trial
court denied defendant’s section 654 and once in jeopardy motion, the
information was amended to strike the deadly weapon enhancement allegations and
defendant pleaded no contest to second degree murder with the understanding that
three years of custody credits for her time in prison on the prior charges
would be waived.  The trial court
sentenced defendant to 15 years to life, stayed the sentence on the counts
in case No. 04F04427 pursuant to section 654, and awarded 1,774 days’
credit, consisting of 1,579 days’ state prison time, 195 days’ presentence time
and no conduct credit.  (§ 2933.2.)  

            Defendant
obtained a certificate of probable cause
and appealed.  

            We
appointed counsel to represent defendant on appeal.  Counsel filed an opening brief that sets
forth the facts of the case and requests this court to review the record and
determine whether there are any arguable
issues on appeal.  (>Wende, supra, 25 Cal.3d 436.) 
Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief. 

            Defendant
filed a supplemental brief which asserts
the trial court erred in denying her motion to dismiss the section 273ab
charge.  She relies on the rule of >Kellett v. Superior Court (1966) 63 Cal.2d
822 (Kellett), and section 194.  

            “An act or
omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.  An
acquittal or conviction and sentence under any one bars a prosecution for the
same act or omission under any other.”  (§ 654,
subd. (a).)  Applying section 654,
in Kellett, the Supreme Court held:  â€œ[w]hen, as here, the prosecution is or should
be aware of more than one offense in which the same act or course of conduct
plays a significant part, all such offenses must be prosecuted in a single
proceeding unless joinder is prohibited or severance permitted for good cause.  Failure to unite all such offenses will result
in a bar to subsequent prosecution of any offense omitted if the initial
proceedings culminate in either acquittal or conviction and sentence.”  (Kellett,> supra, 63 Cal.2d at p. 827.)  Defendant argues she should have been charged
with section 273ab in the first prosecution, and therefore a later
prosecution for this offense is barred by Kellett
and section 654.  

            This rule
does not apply when the prosecution does not or could not know of an offense at
the time of the original prosecution.  (>People v. Scott (1997) 15 Cal.4th
1188, 1202.)  For example, a guilty plea
to rape and attempted murder does not bar prosecution for murder when the
victim dies after the plea.  (>Id. at pp. 1201-1202.)  Here, the child’s death is an element of
section 273ab.href="#_ftn2" name="_ftnref2"
title="">[2]
 Since the child did not die until after
the first prosecution, section 654 and the Kellett rule do not bar a subsequent prosecution for violating
section 273ab.

            Defendant’s
contention regarding section 194 is also without merit.  Section 194 provides in pertinent part:  â€œTo make the killing either murder or
manslaughter, it is not requisite that the party die within three years and a
day after the stroke received or the cause of death administered.  If death occurs beyond the time of three years
and a day, there shall be a rebuttable presumption that the killing was not
criminal.  The prosecution shall bear the
burden of overcoming this presumption.” 
Defendant claims this bars the later prosecution of section 273ab. 

            By its
terms, section 194 applies only to murder and manslaughter.  Moreover, the prosecution rebutted the
presumption at the preliminary hearing by establishing that that the injuries
Truly sustained on May 11, 2004 resulted in complications that were a
direct cause of her death.  Thereafter,
defendant entered a plea to the murder charge and the prosecution was not
required to provide any further proof on this issue. 

            There is an
error in the abstract.  Even though the
trial court ordered the sentence in case No. 04F04427 stayed, the stay is
not reflected in the abstract of judgment.  We shall direct the trial court to prepare a corrected
abstract of judgment.  

            Having
undertaken an examination of the entire record, we find no other arguable error
that would result in a disposition more favorable to defendant.

>DISPOSITION

            The judgment
is affirmed.  The trial court is directed
to prepare a corrected abstract of judgment reflecting that the sentence in
case No. 04F04427 was stayed pursuant to section 654 and to forward a
certified copy of the abstract to the Department
of Corrections and Rehabilitation.  

 

 

                                                                                                   MURRAY    
       , Acting P. J.

 

 

We concur:

 

 

 

                     DUARTE                       , J.

 

 

 

                     HOCH                           , J.