P. v. Ross
Defendant was charged with three crimes stemming from the death of his girlfriends youngest daughter, 25-month-old D.H. The charges consisted of murder (Pen. Code, 187, subd. (a); count 1); assault on a child under age eight, causing death by means of force likely to produce great bodily injury ( 273ab; count 2); and felony child abuse or endangerment ( 273a, subd. (a); count 3). A jury found defendant guilty as charged on all three counts. He was sentenced to 29 years to life in prison, and appeals.
Defendant contends the trial court prejudicially erred in failing to instruct the jury sua sponte on the defenses of accident and justification in all counts and on the lesser included offenses of manslaughter and voluntary manslaughter in count 1. He further claims that the trial court prejudicially erred in failing to clearly instruct the jury that felony endangerment as charged in count 3 requires criminal negligence. Court find each of these claims without merit.
Defendant further contends his four-year term on count 3 should have been stayed under section 654 as a matter of law. Court reject this claim. Lastly, defendant claims his abstract of judgment must be amended to reflect that he was convicted of second degree murder in count 1 and received a stayed term of 15 years to life rather than 25 years to life on count 1. Court agree with this claim; accordingly, we remand the matter to the trial court with directions to amend the abstract and affirm the judgment in all other respects.
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