P. v. RENA

Filed 4/21/06

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Two-year-old Liam died from heat exposure after defendant, his mother, left him in a locked car with the windows closed on a hot day. Defendant pleaded no contest to involuntary manslaughter (Pen. Code, § 192, subd. (b))[1] and felony child endangerment (§ 273a, subd. (a)) of Liam, and to felony child endangerment of Jaden, defendant's four-year-old son, who was left in the car with Liam, but survived. Defendant admitted personally inflicting great bodily injury on Liam (§ 12022.7, subd. (d)), as an enhancement to the endangerment charge. She was sentenced to seven years four months in prison, representing the lower term of two years for endangering Liam, four years for personal infliction of great bodily injury on Liam, and one year four months (one-third the midterm) for endangering Jaden; sentence on the involuntary manslaughter count was stayed pursuant to section 654.

Defendant contends on appeal that she could not lawfully be charged with a section 12022.7, subdivision (d) great bodily injury enhancement because a more specific enhancement, the one provided in section 12022.95, applies in cases like this where the child endangerment results in death. In her related petition for habeas corpus, she contends that her counsel below was incompetent for failing to raise this issue before she was sentenced. Defendant's other claim on appeal is that failure to grant her probation was an abuse of discretion.

We hold that neither of the enhancements in question is more specific than the other, and thus the prosecution had discretion to allege either of them. We further conclude that the court acted within its discretion in denying probation. Accordingly, we affirm the judgment and deny the petition.

I. The Enhancement

Section 12022.7, subdivision (d) provides: â€