(Super. Ct. No. 08F05978)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jonathan Lamar Perry of second degree murder (count 1; Pen. Code, § 187, subd. (a); undesignated statutory references that follow are to the Penal Code), assault resulting in the death of a child under age eight (count 2; § 273ab), and felony child abuse (count 3; § 273a, subd. (a)). The victim in counts 1 and 2 was J.A.; the victim in count 3 was C.A.
The trial court sentenced defendant to an aggregate state prison term of 29 years to life, consisting of four years (the midterm) on count 3 plus 25 years to life on count 2. The court imposed but stayed a sentence of 15 years to life on count 1. (§ 654.)
Defendant contends the trial court erred as to count 1 by failing to instruct the jury sua sponte on voluntary manslaughter as a lesser included offense to murder, on the theory that the crime was committed during an unintentional, nonmalicious felonious assault that resulted in death. We affirm the judgment.
In June 2008 (all dates are in 2008 unless otherwise specified), defendant moved into the two-bedroom apartment of his girlfriend, Tiffany L. Tiffany had two sons, four-year-old J.A. and three-year-old C.A., and an 18-month-old daughter. Tiffany worked five days a week and also attended community college; defendant, who was unemployed, watched the children.
Tiffany saw defendant disciplining the boys by hitting them on the bottom with a belt and told him not to do that; she wanted him to use time-outs instead. She did not see him punch or shove them.
Sometime in June, defendant told Tiffany that J.A. was complaining of chest pain after C.A. had hit him. Tiffany took J.A. to his pediatrician, Dr. Dorothy Wilborn, on June 17. Dr. Wilborn found a centimeter-long bruise on J.A.'s sternum and soft tissue swelling on his chest measuring four inches by five inches. Dr. Wilborn told Tiffany that these injuries could have been caused only by an adult and would have to be reported to Child Protective Services (CPS). Dr. Wilborn did so.
When Tiffany asked defendant if he had hit J.A., defendant denied it. Tiffany believed him.
About a week later, a CPS caseworker came to the residence at a time when defendant was not home. The caseworker told Tiffany that it would be better if defendant did not watch the children. Tiffany was sure defendant knew of the CPS involvement, either because Tiffany told him about the visit or because the caseworker had been there before and left a card which defendant gave Tiffany. (Tiffany pleaded no contest to one count of felony child endangerment arising out of the events of this case.)
On July 19, Tiffany took C.A. to a Kaiser urgent care facility because his face was discolored. She was told to take him to a Kaiser hospital, which she did after stopping at the apartment to tell defendant what was happening. C.A. was admitted to the hospital, and Tiffany stayed there with him, contacting defendant and the children ...