P. v. Holmes CA4/2
A jury convicted defendant Arthur Lee Holmes of second degree murder and assault causing the death of his girlfriend’s nine-month-old son. The trial court sentenced him to a total of 40 years to life in prison, comprised of 25 years to life for the assault and a consecutive term of 15 years to life for the murder.
On appeal, Holmes argues his assault conviction must be reversed because there was insufficient evidence the infant was in his “care or custody” at the time of the injury. He also contends the court improperly instructed the jury on the definition of those terms by reading the following language from this court’s decision in People v. Cochran (1998) 62 Cal.App.4th 826, 832 (Cochran): “The terms ‘care or custody’ do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.” Holmes argues that if we uphold his assault conviction, we must stay the sentence on the murder because it is based on the same
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