Filed 1/4/00 Certified for Partial Pub. 1/19/00 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lisa Guy-Schall, Judge. Affirmed in part, reversed in part and remanded for further proceedings.

A jury convicted Willie Stewart, Jr. (Stewart) of assaulting a child in his custody and care under the age of eight years by means of force that to a reasonable person would be likely to produce great bodily injury (GBI) resulting in the child's death. (Pen. Code § 273ab.) Subsequently, the trial court found true Stewart had suffered two out-of-state serious felony convictions (§§ 667, subd. (a)(1), 1192.7, subds. (c)(8) & (23)) and that those same priors constituted strikes under the three strikes law. (§§ 667, subds. (b)-(i), 1170.12 et seq.) The court sentenced Stewart to a total term of 80 years to life.

Stewart timely appealed. In addition to challenging the sufficiency of the evidence to support his conviction, Stewart contends the trial court committed reversible error by admitting evidence of an earlier act of violence toward the child he killed and by failing to sua sponte instruct the jury on the lesser included offenses of involuntary manslaughter, second degree felony murder, simple assault, assault by means of force likely to produce GBI and battery. He also asserts the true findings regarding his Florida priors must be reversed because there was insufficient evidence they constituted "serious" felonies in California under section 1192.7, subdivisions (c)(8) and (23) and the court erroneously admitted into evidence the Florida complaint to prove up such priors. Finally, Stewart complains a 25-year-to-life sentence under section 273ab constitutes cruel and/or unusual punishment because such unintentional killings are punished as severely or more severely than other homicides. We affirm Stewart's convictions and the true findings based on his Florida conviction for aggravated assault with a deadly weapon. We reverse the true findings based on his Florida prior conviction for attempted robbery with a deadly weapon, vacate his sentence and remand the matter for further proceedings consistent with our opinion.

DISCUSSION

I

Because Stewart challenges the sufficiency of the evidence to support his section 273ab conviction, we have viewed the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment. (People v. Silva (1988) 45 Cal.3d 604, 625; People v. Johnson (1980) 26 Cal.3d 557, 576.) We resolve the issue based upon the entire record and determine whether there is substantial direct or circumstantial evidence of the convicted offenses. (People v. Towler (1982) 31 Cal.3d 105, 118; People v. Johnson, supra, 26 Cal.3d at p. 577.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518.)

In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether "'"any rational trier of fact could have found the essential elements of [Stewart's crime] beyond a reasonable doubt."' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081, original italics.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict[s,]" we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Here the record before the jury, viewed in accordance with these rules, showed that at about 12:48 a.m. on May 1, 1998, Oceanside police officers responded to Stewart's 911 call requesting aid for a child who had stopped breathing. The officers found Stewart in the living room of his apartment, holding a telephone between his shoulder and ear, and kneeling on the floor next to a small child who was lying on his back and clothed only in a diaper. Stewart was talking excitedly with the 911 dispatcher while pushing on the child's chest, as if doing CPR.

When Stewart failed to respond to an officer's questions about what had happened, he pushed Stewart out of the way, checked on the child's vital signs and attempted further CPR on the child. The child's eyes were droopy, partly-open and dilated; his skin was cold and stiff; he was not breathing; there were bruises on his forehead; and there was a pinkish-colored mucous fluid on the child's face, neck and chest. Paper towels with the same substance were strewn on the kitchen and living room floors. There were also bloody tissues and napkins on the floors and the kitchen counter of the apartment. The officer opined the child had been dead for some time, about an hour or so.

Within minutes of the police arrival, a captain and a paramedic with the Oceanside Fire Department appeared on the scene and took over efforts to resuscitate the child and talk with Stewart. Stewart told them that the child, named Demarcus Celestine, Jr., was "rough housing" with his brother Kyle, had fallen off a coffee table, "bumped" his head and had been unconscious for about 10 minutes. This explanation did not seem accurate to the paramedic because Demarcus appeared to have been dead for some time and no coffee table was found in the apartment.

When Stewart was further questioned, he stated he had found Demarcus unconscious when he went to check on him as he slept in bed. The fire captain felt Stewart was not directly answering the questions about what had happened. When the paramedic determined Demarcus had been in cardiac arrest for about 45 minutes and could not be resuscitated, CPR was stopped; Stewart then became agitated, pleading with him to continue efforts to revive Demarcus. Demarcus was declared dead at the apartment.

Stewart's sister, who lived next door to Stewart and the child's mother, called the mother at her work and told her there was a problem at home. The mother, Jennifer Celestine (Mother), a certified nurse's assistant, arrived home several minutes later and was told Demarcus was dead. When questioned about his health, Mother told Dr. Christine Stanley, the San Diego County Deputy Medical Examiner, who was at the scene, that Demarcus had several bruises on his legs, chest and arms from being elbowed by his older brother while playing rough.

Stanley, who had examined Demarcus at the apartment, performed an autopsy on his body over the next two days, May 2 and 3, 1998, and concluded the cause of his death was pulmonary edema resulting from brain damage and swelling. The autopsy showed that Demarcus, who was 2 and 1/2 years old at the time of his death, weighed 43 pounds and was 37 inches tall, had 4 separate bruises across his forehead, plus 3 in his hair line, several near his right eye, a bruise on top of his right ear and an abrasion on the top of his head. On the back of his head, there were 5 separate bruises and a large area of at least 12 overlapping bruises. There were also bruises on his chin, on his left jaw, bruising opposite his teeth, three bruises on the side of his neck, others on the back of his neck, several on his right shoulder, elbow, top and back of his forearm, on his right abdomen, on his back over the "wings," the small of his back and his tailbone, on his upper left leg below the buttocks, on the front and back of his thighs, and numerous bruises on his shins and knees. Stanley also found bruising on the inside of Demarcus's back, which could be explained by his back being slammed down onto a flat surface.

Demarcus had over 60 bruises, some of which were older, but most of which were less than 24 hours old. Of these, 24 or 25 reflected separate impact sites on the back of his head, implying nonaccidental trauma. The sheer number of overall bruises was only consistent with nonaccidental trauma or child abuse and totally inconsistent with a fall within the apartment.

Demarcus also had a tear and bleeding in his mouth on the lower "frenulum," the tissue that holds the lip to the gum line, an injury "classic for child abuse." He also had a one-eighth inch cut inside the corner of his mouth, had hemorrhages in the soft tissues of his neck, the broad bone area of the upper back and in back of one eye. His scrotum was red and swollen, with abrasions on the underside of his penis and a fresh hemorrhage surrounded his left testicle. Although Demarcus's skull was not fractured, Stanley explained that his brain had swollen so much it pulled apart the sutures that fuse together to close the "soft spot" in a baby's head.

Stanley opined Demarcus died due to the injuries to his brain. She noted such injuries were similar to those seen when a child is thrown from a car or hit by an air bag at 200 miles per hour in an automobile accident or from the force of impact in a New York City high-rise building fall. She concluded Demarcus died from repeated blunt force blows to the back of his head or severe shaking. She explained Demarcus's death could have been caused by the cumulative effect of repeated "moderate" blows or one or more "may have been tremendous." Although she could not determine the exact cause of the injuries, she noted their pattern was consistent with Demarcus's head being hit multiple times against the floor or against an object like a countertop. She termed his death, a homicide.

As a result of his brain injuries, Demarcus developed pulmonary edema, which caused his heart to beat improperly and fluid to backup in his lungs. Additionally, blood-tinged fluid, which matched that on the tissues and paper towels in the apartment, came out through his mouth and nose. Based on the severity of his brain injuries, the onset of these symptoms would have taken place within minutes and Demarcus would not have been able to eat, walk or talk. At the time Stanley examined Demarcus's body, it was very clean, as if he had just been bathed, and his bladder and diaper were urine free, which were unusual circumstances in the case of pulmonary edema.

Stewart was charged in this case for Demarcus's death. In addition to the presentation of the above evidence, Mother, Demarcus's brother and several neighbors testified at trial. Mother stated she had met Stewart in February 1998 and he had moved in with her and her two sons at the end of March. Because mother worked 12-hour night shifts 3 nights a week at a board and care home, Stewart would babysit the children during that time. When Mother left her children in Stewart's care on April 30, 1998, about 6:45 p.m., they were eating dinner in the apartment. She called home after receiving a page from Stewart at 7:33 p.m. He told her the boys were "doing karate" and Demarcus had vomited. She could hear the boys in the background. Mother called back at 9 p.m. to check on everyone. She talked with the boys, who both sounded "fine." At 10:30 p.m. Mother received another page from home. When she returned the call, Stewart did not say anything to cause her concern and she did not hear the boys in the background as before. About 1 a.m. she received calls from Stewart's sister and a deputy sheriff to return home.

Demarcus's brother, who was five years old, testified he heard Demarcus loudly crying a "different" cry than usual in the living room that night while he was in bed watching the "Flintstones" television program. He also heard loud noises and someone "throwing up." Stewart was also in the living room with Demarcus at that time. Stewart had gotten angry with Kyle earlier that night about not turning on the shower before he helped him shower and get ready for bed. The parties stipulated the Flintstones aired between 10 and 10:30 p.m. that night.

Two women who lived in an apartment with the same floor plan directly below Mother's and Stewart's apartment testified that between 9:45 and 10 p.m. on April 30, 1998, they heard an exceptionally loud "thump" in the living room area in the apartment above. After one woman left the apartment between 10:15 and 10:30 p.m., the other heard crying and a high-pitched scream in the kitchen area of the apartment above, which suddenly stopped after 10 to 15 seconds. About an hour later, she head another loud thump, as if something had been thrown on the floor, followed by a rumble or rolling sound by the front door area of the above apartment. After about 15 more minutes, she heard an even louder thump near the upstairs apartment's balcony door.

Over defense objections, another apartment tenant was allowed to testify that nearly two months before Demarcus's death, she heard Stewart yelling at Demarcus to go faster down some concrete stairs outside his apartment and saw him then push Demarcus in the buttocks area with his foot causing him to tumble and fall down the last four steps. As Demarcus was crying, Stewart noticed the tenant nearby and told Demarcus, "If you wouldn't have ran down the stairs you wouldn't have fallen like that."

The jury subsequently determined Stewart had violated section 273ab by assaulting Demarcus with such force as to cause his death. Such section specifically provides in pertinent part:

To prove this crime, four elements must be shown: "1. [a] person had the care and custody of a child under eight years of age; 2. [t]hat person committed an assault upon the child; 3. [t]he assault was committed by means of force that to a reasonable person would be likely to produce great bodily injury; and 4. [t]he assault resulted in the death of the child." (CALJIC No. 9.36.5; People v. Preller (1997) 54 Cal.App.4th 93, 97-98.)

As he did below, Stewart challenges only the sufficiency of the evidence as to the third element, arguing there was no evidence presented at trial to establish a reasonable person would be likely to know "shaking or hitting a child with rapid, 'moderate' force" would produce GBI. We disagree. One need only look to the entirety of the expert testimony describing the extent of Demarcus's injuries and the force necessary to produce them to find substantial evidence to support such element.

As the court in Preller noted, the Legislature has demonstrated its intended interpretation of this third element "to the force of the assault on the child, not to the quality of bodily injury contemplated by the reasonable person." (People v. Preller (1977) 54 Cal.App.4th 93, 98.) To support this element there must be evidence of force used that will "be likely, in the mind of a reasonable person, to produce great bodily [injury] and the force must result in the child's death." (Ibid.) Thus "the prosecution need not prove that a reasonable person would believe the means of force would be likely to result in the child's death." (Ibid.)

Here, Stanley's testimony concerning the severity of Demarcus's injuries belies Stewart's claim there was insufficient evidence of violence in his assaults on Demarcus from which a reasonable person would believe likely to produce GBI. Regardless whether the exact cause of Demarcus's injuries is known, Stanley testified they were either caused by rapid, "violent" shaking which includes "the rattling of the brain slamming against the skull with all these different impacts[,]" or by the cumulative effect of rapid, repeated blows with one or two "tremendous" ones, leaving at least 24 or 25 bruises on the back of his head. A reasonable person would clearly know that either of such described actions would likely produce GBI on a small child. Stewart's assertions otherwise are specious. Simply, no further expert testimony was necessary to show the force necessary under section 273ab. Substantial evidence supports the jury's verdict.

II

"No judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; accord, Evid. Code, §§ 353 & 354.) Generally, "a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; accord, People v. Breverman (1998) 19 Cal.4th 142, 149.) Stewart contends the trial court committed reversible error and violated his due process rights by admitting into evidence his prior act of violence of pushing Demarcus down some concrete stairs. He specifically argues the court committed prejudicial error because such earlier conduct was irrelevant, contravened the general rule barring evidence of other bad acts (Evid. Code, § 1101, subd. (a)), was more prejudicial than probative, and the record fails to show the court weighed such considerations under Evidence Code section 352. Stewart claims the cumulative effect of admitting such evidence prevented him from receiving a fair trial.

It is well settled that evidence of other conduct may be admitted under Evidence Code section 1101, subdivision (b) in cases where the evidence proves a material fact other than criminal disposition has a tendency to prove or disprove the material fact and is not merely cumulative, and the probative value outweighs its prejudicial effect. (People v. Ewoldt (1994) 7 Cal.4th 380, 393-407; People v. Daniels (1991) 52 Cal.3d 815, 856.) While the admission of such evidence is within the discretion of the trial court, that discretion may be abused where evidence is admitted, even if relevant, if it is probable that it will create substantial danger of undue prejudice to the defendant. (Evid. Code, § 352; People v. Ewoldt, supra, 7 Cal.4th at p. 404.) We will reverse the lower court's determination to admit such evidence only where it is reasonably probable that a result more favorable to the defendant would have been reached absent the admission. (People v. Watson, supra, 46 Cal.2d at p. 836.)

Where there is a dispute, as in this case, that all elements of the charged crime actually occurred, other acts evidence may be relevant to prove common design and plan. In Ewoldt, our Supreme Court held evidence of such earlier bad acts were admissible under Evidence Code section 1101, subdivision (b) to establish a common design or plan if the uncharged misconduct "shares sufficient common features with the charged offense[] to support the inference that both . . . are manifestations of a common design or plan." (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) Such evidence is admitted not to prove identity or intent, but to show that the act was in fact done. (Id. at p. 399.) The existence of the design or plan may be proven circumstantially when "the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan." (Id. at pp. 401-402.) Although the degree of similarity required for showing a relevant plan is greater than that needed to show intent, it is less than that required to show identity, and need not be distinctive or unusual. (Id. at pp. 402-403.) Evidence that the defendant possessed a plan to commit the type of crime of which he is charged is relevant to prove the defendant employed that plan and committed the charged offense. (People v. Balcom (1994) 7 Cal.4th 414, 424.)

Once a court determines evidence of a defendant's uncharged misconduct is relevant to prove some material fact other than the defendant's criminal disposition, such as a plan, it must then "examine whether the probative value of the evidence of defendant's uncharged offenses is 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (Citation.)" (People v. Ewoldt, supra, 7 Cal.4th at p. 404; see also People v. Thompson (1988) 45 Cal.3d 86, 109.) Although "the record must affirmatively show the trial judge did in fact weigh the possibility of prejudice against the probative value of the evidence [when an Evidence code section 352 objection has been made]" (People v. Meacham (1984) 152 Cal.App.3d 142, 155), there is no particular formula for engaging in the weighing process as long as the record reflects in some fashion that the court has done so. (People v. Thompson, supra, 45 Cal.3d at p. 111, fn. 18.)

Here, we are presented with a record where the trial court considered together several in limine motions regarding whether third party culpability evidence would be admissible, whether Stewart's earlier statements made to Mother: "'I sit here and watch these fucking kids, and what do you do? You treat me like . . . mother-fucking shit,' [and] 'shut the fuck up,' [made as he struck the children]" would be admissible, and whether Stewart's earlier act of violence toward Demarcus on the stairs would be admissible to show common design and plan. The prosecutor's theory regarding the other misconduct evidence was that it showed a definite plan of aggression toward Demarcus that became more violent as Stewart became more and more frustrated with his role as a babysitter. Defense counsel argued the other acts evidence was merely evidence of Stewart's propensity to commit violent acts and was extremely prejudicial.

Before ruling on such other acts evidence, after balancing in its mind Stewart's need and opportunity to present a defense under Evidence Code section 352, the court decided it was not allowing third party culpability testimony unless Stewart testified. The court also declined to allow statements that Stewart made to Mother or that were overheard when Stewart struck the boys, since they were more prejudicial than probative after weighing the matter under Evidence Code section 352.

As to the prior violence evidence under Evidence Code section 1101, subdivision (b), the court noted the prosecutor had fulfilled the Ewoldt requirement the charged and uncharged offense have enough similarities to be relevant. The court found such were "close in time, same party in question in this particular matter, which . . . shows a particular plan or design to, in fact, inflict a certain kind of violent conduct towards, noting the age of this party in particular and the probability of consequences of injury to this party. . . . [¶]  [Stewart's] directed behavior towards this particular child, the consequences of that to the child are certainly and probably significant in this case." The court concluded the other misconduct evidence was highly probative, would not be confused with the actions in the present charged misconduct and offered to give a limiting instruction regarding such prior evidence.

Afterwards, the court also considered whether another act of violence not mentioned in the prosecutor's trial brief would be admissible if Stewart were to testify. Such concerned a dispute between Stewart and a neighbor over the smoke from a barbecue pit where Stewart became angry and with a roll of quarters in his hand hit the man. The court disallowed such incident as too prejudicial under Evidence Code section 352.

At the conclusion of the trial, defense counsel requested that no limiting instructions regarding the other misconduct evidence with Demarcus and the concrete stairs be given. Although none were given, the court reminded the prosecutor to only argue such evidence showed a common method, plan or scheme of aggression toward Demarcus, not to argue such showed Stewart was a bad person who had a predisposition to commit violent acts. The prosecutor so limited her argument.

Contrary to Stewart's arguments that the admitted other misconduct evidence was not relevant to show anything other than he had a bad character because it was totally irrelevant to the issues of identity and intent, the record reflects neither issue was raised as part of the motion below. The other acts evidence was solely admitted for the limited purpose of showing a common plan. The record reflects the court carefully considered the similarities between the uncharged and charged acts and found them sufficient to infer the existence or manifestation of a plan to inflict a certain type of violent act upon Demarcus. As to Stewart's concern the admission of such evidence may have been confusing to the jury because it might have been used to prove issues of intent and identity, such is waived because Stewart, through his counsel, specifically requested the jury not be instructed to so limit the other acts evidence.

Further, although we prefer a court faced with an Evidence Code section 352 objection state it has weighed the possibility of prejudice against the probative value of the evidence under such section, that the court here did not do so is not fatal. Because the court weighed the probative and prejudicial value of other statements and acts sought to be entered into evidence during the same in limine motions and exercised its discretion to exclude matters that were too prejudicial, we glean from this record the court also carefully considered and weighed the prejudicial effect of the other misconduct evidence before it was admitted. In addition, as noted above, it found such evidence highly probative and offered to give an instruction to limit any prejudicial effect of such evidence. We discern no abuse of its discretion in the admission of such evidence.

Nor can we find that Stewart was denied a fair trial by the admission of the other uncharged misconduct evidence. Even if we were to somehow find the admission to be error, on this record, which overwhelmingly supports the conviction, we could not conclude that it is reasonably possible that a result more favorable to Stewart would have been reached in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836.)

III

Stewart next raises five separate arguments regarding the trial court's failure to instruct the jury on purported lesser included offenses to section 273ab. The general rule is that in a criminal case the trial court must, on its own motion, even without request, instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Hood (1969) 1 Cal.3d 444, 449.) Further, because section 1159 provides that a jury may find a defendant guilty of any offense, the commission of which is necessarily included in the charged offense, the court must also sua sponte instruct fully on all lesser necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 161.)

An offense is a lesser included offense of another for purposes of section 1159 if it meets either of the following tests: 1) "Legal elements" test: The greater statutory offense cannot be committed without committing the lesser offense because all the elements of the lesser offense are included in the elements of the greater; 2) "Accusatory pleadings" test: The charging allegations of the accusatory pleading include language describing the offense in such a way that if committed in that manner the lesser offense must necessarily be committed. (People v. Clark (1990) 50 Cal.3d 583, 636.) It is error, however, to instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged. (People v. Hawkins (1995) 10 Cal.4th 920, 954.) Any error in instructions on a lesser included offense in a noncapital case is subject to the Watson standard of review requiring reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of such error. (People v. Breverman, supra, 19 Cal.4th at p. 165.)

We apply these rules in turn to Stewart's specific contentions of instructional error.

A.

Stewart's assertion the trial court prejudicially erred in not sua sponte instructing the jury on involuntary manslaughter as a lesser included offense of section 273ab has been resolved against him in Orlina v. Superior Court (1999) 73 Cal.App.4th 258 (rev. den. 10/20/99). The court in Orlina found that involuntary manslaughter is a lesser related offense of section 273ab rather than a lesser included offense for which the rules of sua sponte instruction apply. (Id. at p. 262.) We agree with the analysis and conclusion in Orlina. The trial court simply did not have a sua sponte duty to instruct on involuntary manslaughter in this case.

B.

Stewart next claims the trial court committed reversible error by not sua sponte instructing the jury on the lesser included offense of second degree felony-murder based on child abuse or assault by force likely to produce great bodily injury. He bases this contention on the premise the jurors could have concluded that to a reasonable person, the assault was not likely to result in GBI. We agree with the People these assertions fail because such instructions would have violated the merger doctrine set forth in People v. Ireland (1969) 70 Cal.2d 522.

In Ireland, our Supreme Court restricted the scope of the felony-murder rule, declaring it inapplicable to those felonies that are an integral part of, and included in fact within, the homicide. (People v. Ireland, supra, 70 Cal.2d at p. 539.) In People v. Burton (1971) 6 Cal.3d 375, our Supreme Court revisited and refined the Ireland rule, noting that the felony-murder rule may nonetheless apply where the underlying felony is committed with an "independent felonious purpose." (People v. Burton, supra, 6 Cal.3d at p. 387.) Thus, even where the underlying felony is included within the facts of the homicide and is an integral part thereof, further inquiry is needed to determine if the killing resulted "from conduct for an independent felonious purpose" rather than from a "single course of conduct with a single purpose." (Ibid.) In Ireland, the purpose of the defendant's conduct was "the very assault which resulted in death[,]" whereas, there was an independent felonious purpose to acquire money or property belonging to another in Burton where the defendant attempted an armed robbery and killed one person in the process. (People v. Burton, supra, 6 Cal.3d at p. 387.)

Subsequently, when our Supreme Court again visited the merger rule of Ireland in People v. Hanson (1994) 9 Cal.4th 300, it noted such rule has not been extended beyond the context of assault "even under circumstances in which the underlying felony plausibly could be characterized as 'an integral part of' and 'included in fact within' the resulting homicide." (Id. at p. 312.) In so doing, however, the court specifically mentioned People v. Smith (1984) 35 Cal.3d 798, which considered felony child abuse of the assaultive category, as an appropriate case where the merger rule of Ireland would apply.

In Smith, the court had used the principles established in Ireland and Burton to find the felony-murder rule would not apply because there was willful infliction of "unjustifiable physical pain on a child" in the assault that resulted in the death of a child, and "[i]t would be wholly illogical to allow this kind of assaultive child abuse to be bootstrapped into felony murder merely because the victim was a child rather than an adult, as in Ireland." (People v. Smith, supra, 35 Cal.3d at pp. 806-807.)

Although Smith involved a violation of section 273a, subdivision (1), rather than section 273ab, as in this case, we see no reasonable difference in the application of the Ireland merger rule to this case, where the assault likely to produce GBI, or the child abuse, was an integral part of Demarcus's death. Quite simply, because the underlying felonious conduct is not independent of an assault that results in death, the killing is outside of the felony-murder rule. (People v. Luparello (1986) 187 Cal.App.3d 410, 436.) That being so, there was no duty for the court to instruct the jury on such rule as a lesser included offense of section 273ab.

C.

Stewart's related assertions the trial court committed reversible error by not sua sponte instructing the jury as to the lesser related offenses of assault (§ 240), assault by means of force likely to produce GBI (§ 245, subd. (a)(1)) and battery (§ 242) have no merit. Although assault and assault by means of force likely to produce GBI are technically lesser included offenses of section 273ab, and battery may be a lesser included offense under certain circumstances, there is no duty for a court to instruct the jury on such lesser offenses unless there is substantial evidence the defendant if guilty is only guilty of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 118.) Thus, as our Supreme Court has recently stated:

In this case, there was no evidence in the record absolving Stewart from the greater offense with which he was charged and showing he only committed simple assault, assault with force likely to produce GBI or battery upon Demarcus. Rather the evidence revealed Stewart assaulted Demarcus with repeated blunt force or severe shaking that left at least 24 or 25 separate bruises on the back of Demarcus's head. Demarcus's brain injuries that caused his death were similar to those seen in a child who had been thrown out of a car or hit by an air bag at 200 miles per hour in an automobile accident, or who had fallen out of a high-rise building. The magnitude of the assault causing such injuries and death fully supported the charged offense.

The only evidence in the record in Stewart's favor were his own statements to police and paramedics who arrived at the apartment that Demarcus and Kyle had been "rough housing," Demarcus had fallen off a coffee table and had bumped his head, Demarcus had gone to bed, and when he checked on him later he was unconscious and had been so for only 10 minutes before the authorities arrived. If the jury had believed Stewart's statements, it would not have found he even committed an assault. Thus, there was no evidence in the record to support a finding the offense committed was less than that charged.

Moreover, even assuming the trial court erred in not instructing the jury on some lesser included assault or battery offenses, any error in not so instructing is clearly harmless on this record. Pursuant to Stewart's attorney's request, the court instructed the jury on the lesser offense of child abuse under section 273a, subdivision (a) (CALJIC No. 9.37), and the jury rejected that lesser crime, finding Stewart guilty of the greater charged offense. It is, therefore, not reasonably probable Stewart would have received a more favorable outcome if the court had instructed the jury on assault, assault by means of force likely to produce GBI or battery. (People v. Watson, supra, 46 Cal.2d at p. 836.)

IV

Stewart finally challenges his sentence as improper on three grounds. First, he claims there was insufficient evidence to support the trial court's true findings his prior Florida convictions for attempted robbery with a deadly weapon (Fla. Stats. Ch. §§ 812.13(2)(1)/777.04) and aggravated assault with a deadly weapon (Fla. Stats. Ch. § 784.012) constituted "serious" felony convictions for purposes of the three strikes law and an enhancement under section 667, subdivision (a)(1). He then argues the trial court erred in admitting the Florida complaint, which contains hearsay statements concerning the facts of his crimes in that state, as evidence for proof of those priors. Lastly, he asserts a 25-year-to-life sentence for violation of section 273ab constitutes cruel and/or unusual punishment under federal and state law.

A.

Addressing Stewart's related issues regarding the truth of his Florida priors together, we note it is well established that foreign convictions can be used in California for sentencing purposes where they contain all of the elements required for a felony in this state. (People v. Crowson (1983) 33 Cal.3d 623, 633-635; People v. Guerrero (1988) 44 Cal.3d 343, 346-348; People v. Myers (1993) 5 Cal.4th 1193, 1195.) As we noted in People v. Purata (1996) 42 Cal.App.4th 489:

Here, the trial court was presented and admitted as evidence, certified documents consisting of a prior conviction packet, a Florida information and a Florida complaint, showing that in the State of Florida, Pinellas County, Stewart was convicted, after pleading no contest, of the crimes of attempted robbery with a deadly weapon and aggravated assault with a deadly weapon on June 15, 1987. As for the attempted robbery with a deadly weapon prior, the certified information alleged Stewart and a co-defendant attempted to rob a victim, to take money or property with the intent to permanently deprive the victim of the money or property and that Stewart and his co-defendant carried a firearm. The information also alleged Stewart used a deadly weapon, "to wit: a firearm," at the time he assaulted two detectives thereby committing aggravated assault with a deadly weapon.

The court then noted the following:

Stewart's counsel objected, arguing the criminal complaint was not the charging document to which Stewart had pled, was not equivalent to a preliminary hearing since it was not former testimony, Stewart had no rights to confront or cross-examine the declarant and the statements in the declaration were hearsay. The prosecutor countered that the complaint "sets out the underlying facts of what occurred the night that the defendant was arrested [in Florida]," and was the document underlying the information and thus part of the record of conviction admissible to prove a prior conviction. The court ruled the complaint was part of the record of conviction, stating: "[S]ince this particular complaint is akin to a preliminary hearing because it is under oath and results in a bindover [by a judge] for the pursuance of charges in a trial court proceeding[,] . . . it can be considered in determining [the] underlying facts."

After reviewing the admitted documents, in light of Stewart's earlier admission he was the same person for whom the certified documents applied, arguments that the gun use allegation would have to attach to a recognized felony in California and there was insufficient evidence the Florida robbery and aggravated assault were respectively equal to a

California robbery and assault, the court found both priors qualified as serious felony priors for strike and enhancement purposes.

In doing so, the court found the defense was correct that it was unclear whether the elements of the Florida crimes matched those of California crimes. However, the court looked at Stewart's earlier conduct as evidenced by the Florida record of conviction, including the complaint, information, plea form and judgment, to find that the "weapon event," and the fact Stewart was sentenced on an armed enhancement, which corroborated the statements in the complaint regarding his firearm use, showed he was "personally armed with a firearm during the course of a Florida attempted robbery." As for the assault, the court found that although there was a co-defendant involved, the information charged only Stewart with armed assault. By taking all the charging documents and the actual plea into consideration, the court found the second alleged prior was also a serious felony prior, noting it was the personal use of a firearm or deadly weapon that qualified Stewart's priors as serious felonies. The court thus limited its true findings for both Florida priors to section 1192.7, subdivisions (c)(8) and (c)(23).

On appeal, Stewart argues there was insufficient evidence in the properly admitted certified information and prior packet (exhibits 1 & 2) to support the court's true findings his Florida convictions were serious felonies in California for strike or enhancement purposes. He asserts the only way the trial court could have found those convictions to be serious felonies under section 1192.7, subdivisions (c)(8) and (c)(23) would have been by reviewing the statements in the Florida complaint in his earlier case, which he argues is neither a part of the "record of conviction" nor cognizable evidence as it contains inadmissible hearsay. Although we find the Florida complaint to be part of the record of conviction, we conclude its factual contents were improperly admitted as evidence over Stewart's hearsay objections.

As noted above, in determining the truth of a prior conviction, a trial court may look to the entire record of conviction, which has been acknowledged to vary depending on the type of proceedings leading to the imposition of judgment on the prior conviction. (People v. Myers, supra, 5 Cal.4th at p. 1195; People v. Houck (1998) 66 Cal.App.4th 350, 355.) Thus, where the earlier conviction resulted from a guilty or no contest plea rather than a trial, the preliminary hearing transcript, arraignment form setting forth facts relating to the crime and the charging documents have all been found to be part of the record of conviction that may be proper for a court's review in making its determination whether that prior qualifies as a strike or serious felony enhancement. (People v. Houck, supra, 66 Cal.App.4th at p. 355 and cases cited therein.) Because "[c]onsiderations of reasonableness and fairness dictate that a 'record of conviction' include . . . those documents that reliably reflect the conduct of which a defendant was convicted [via his guilty or no contest plea]" (Id. at p. 356), the Florida complaint, an affidavit that provides the factual basis for probable cause to bindover Stewart for trial on the information to which he pled no contest, was properly part of that record of conviction.

However, the question remains whether the factual statements contained within such certified document were properly admitted over Stewart's hearsay objections as evidence on the truth of the seriousness of his prior convictions. We conclude they were not.

As our Supreme Court in People v. Reed (1996) 13 Cal.4th 217 explained, excerpts from a preliminary hearing transcript are "hearsay in the form of out-of-court statements of the witnesses at the prior hearing, introduced for their truth, i.e., to show the nature of defendant's conduct underlying his prior . . . conviction. (Evid. Code, § 1200.)" (Id. at p. 224.) The court further commented that such statements are not comparable to those contained in a charging instrument which may be used to show the conduct to which a defendant by his plea has admitted. (Ibid.) Nonetheless, the court in Reed admitted the pertinent excerpts from the preliminary hearing transcript in that case, although they were hearsay, because such qualified for admission as former testimony under Evidence Code section 1291, subdivision (a). (Id. at pp. 225-228.) The court in Reed also found that because the preliminary hearing process permitted the defendant the right to confront and cross-examine witnesses, the admission of such transcript excerpts did not violate a defendant's constitutional due process rights. (People v. Reed, supra, 13 cal.4th at pp. 228-229.)

In this case, although the court construed the Florida complaint process to be "akin" to the California preliminary hearing process, it is not. Contrary to California's procedure, Florida's procedure in lieu of a preliminary hearing does not provide a defendant the right to confront and cross-examine witnesses (Fla. Rules of Crim. Pro., rule 3.133, subd. (a)(1)), which are significant factors in permitting the use of such transcript excerpts to establish the facts of a prior conviction in California. (People v. Reed, supra, 13 cal.4th at p. 223.)

Moreover, the Florida complaint contained multiple hearsay. Aside from the out-of-court nature of St. Petersburg Police Detective Mariani's statement itself, such includes his assertions that certain events "reportedly" occurred during the earlier attempted robbery and aggravated assault. His narration relates what he was told by other detectives concerning Stewart's prior activities. These underlying facts provided probable cause to bindover both Stewart and his co-defendant for trial.

Although the trial court here thought Mariani was a percipient witness to the earlier attempted robbery and aggravated assault, his statements contained in the complaint do not show he personally witnessed anything. Nor does he identify the detectives who saw Stewart's and his co-defendant's conduct and reported it to him or show that Stewart made any admissions to him. It thus does not appear that any exception to the hearsay rule is applicable to the statements in the Florida complaint. We, therefore, conclude the contents of that document were inadmissible hearsay.

The question remains whether the trial court's error in admitting the statements in the Florida complaint was prejudicial. To answer this question we must consider the related issue of whether there was sufficient admissible evidence in the record of conviction to show Stewart's two out-of-state earlier convictions were for serious offenses. Before trial, Stewart pled no contest, admitting to having committed the two crimes alleged in the information. The record of conviction, absent the inadmissible hearsay statements in the complaint, showed Stewart was, as the trial court found and the information revealed, the only defendant charged with armed assault on the detectives who apprehended him for the attempted robbery. This admitted gun use establishes that the conduct underlying Stewart's earlier conviction for aggravated assault with a deadly weapon constitutes a serious felony conviction for purposes of both the three strikes law and a section 667, subdivision (a)(1) enhancement.

However, even reviewing the record in the light most favorable to the judgment, we conclude there is not substantial evidence to support the fact finder's true findings Stewart's out-of-state attempted robbery with a deadly weapon prior constituted a strike and qualified as a serious felony enhancement. (People v. Purata, supra, 42 Cal.App.4th at p. 496.) Without the use of the inadmissible complaint statements which showed it was Stewart who was holding the firearm during the attempted robbery, there is no evidence in the record of conviction to show he personally used a firearm or deadly weapon in the commission of the Florida attempted robbery. Because the information only reflected Stewart "carried" a firearm during the commission of that offense, such evidence was insufficient to support the trial court's findings the prior attempted robbery offense constituted a serious felony under section 1192.7, subdivisions (c)(8) and (c)(23) for purposes of qualifying as a strike and section 667, subdivision (a)(1) enhancement. The admission of the complaint's statements regarding these findings was thus prejudicial. (People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, the court's true findings in this regard must be reversed and the matter remanded for further proceedings.

B.

Stewart contends the 25-year-to-life sentence under section 273ab violates the state and federal constitutional ban against cruel and/or unusual punishment. He bases his facial challenge to such sentence on grounds section 273ab, which he characterizes as a strict liability crime, impermissibly provides for punishment for unintentional killings as severe or more severe than intentional homicides in California that are regarded as more serious crimes. Relying basically on In re Lynch (1972) 8 Cal.3d 410 and on the Eighth Amendment as applied to the states through the Fourteenth Amendment and interpreted in Solem v. Helm (1983) 463 U.S. 277, he argues the imposition of a 25-year-to-life term is "so disproportionate" to the mere assault on a child without the necessity of intent to cause death or injuries, or even a subjective appreciation of the risk or force used, that such sentence "shocks the conscience" and thus constitutes cruel and/or unusual punishment. (See Id. at pp. 291-293; In re Lynch, supra, 8 Cal.3d at pp. 424-426.) We disagree.

Contrary to Stewart's reliance on Solem to show an Eighth Amendment violation, the latest United States Supreme Court case of Harmelin v. Michigan (1991) 501 U.S. 957, which addressed the question whether that constitutional amendment includes a proportionality guarantee in noncapital cases, greatly undermines the holding in Solem. While Harmelin, did not contain a majority opinion with respect to the issue, two justices concluded the Eighth Amendment contains no proportionality guarantee (Id. at p. 965 [opn. of Scalia, J., joined by Rehnquist, C.J.]) and three other justices concluded the amendment forbids only those sentences which are "grossly disproportionate" to the crime (Id. at p. 1001 [opinion of Kennedy, J., joined by O'Connor and Souter, Js.]). Even those justices recognizing a guarantee of proportionality review stressed that, outside the context of capital punishment, successful challenges to a particular sentence are "exceedingly rare" because of the "relative lack of objective standards concerning terms of imprisonment." (Ibid.) The defendant in Harmelin was given a life sentence without possibility of parole for possessing a large quantity (672 grams) of cocaine.

Comparing the magnitude of Stewart's current offense to the magnitude of the felony at issue in Harmelin, in light of that case's holding only extreme sentences that are "grossly disproportionate" to the crime do not pass constitutional muster (Harmelin v. Michigan, supra, 501 U.S. at p. 1001), his claim that a 25-year-to-life imprisonment for a section 273ab conviction would constitute cruel and unusual punishment within the meaning of the Eighth Amendment must necessarily fail.

As to California's separate constitutional prohibition against cruel or unusual punishment (Cal. Const., art. I, § 17; Raven v. Deukmejian (1990) 52 Cal.3d 336, 355), we note that the power to define crimes and prescribe punishment is a legislative function and we may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate that constitutional prohibition. (In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Ultimately, however, the test whether a specific punishment is cruel or unusual is whether it is "'out of all proportion to the offense' . . . so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinson v. California (1962) 370 U.S. 660, 676, and citing In re Lynch, supra, 8 Cal.3d at p. 424.)

Here, Stewart's punishment was controlled in the first instance by his conviction under section 273ab. Such statute, as enacted in 1994, provided for a 15-year-to-life punishment for a caretaker or custodian of a child under the age of eight years who assaulted the child with such force that a reasonable person would believe was likely to result in GBI. (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 47, § 1, No. 9, West's Cal. Legis. Service, p. 4007.) In 1996, the Legislature amended section 273ab to increase the punishment for such crime to 25 years to life. (Stats. 1996, ch. 460, § 2, No. 8, West's Cal. Legis. Service, p. 2333.) That the Legislature saw it necessary to increase the punishment for those people who assault a child under eight years of age with force that objectively is likely to result in GBI and such assault does in fact result in the death of the child certainly does not shock our conscience.

As the court in People v. Albritten (1998) 67 Cal.App.4th 647 commented, section 273ab "is . . . akin to a child abuse homicide statute. . . . Considering the purpose of the statute -- to protect children at a young age who are particularly vulnerable -- there can be no dispute of the gravity of the governmental interest involved." (Id. at pp. 659-660.) The court in Albritten held, among other things, that section 273ab was not "an 'unconstitutional "strict liability"' statute in which a murder sentence is imposed for an offense without a mental state element." (Id. at pp. 658-660.) Rather the mens rea for such crime "is willfully assaulting a child[, thus] the assault must be intentional." (Id. at p. 658.) The court in Albritten could not find any viable constitutional reason why the Legislature could not criminalize the conduct required under section 273ab and make it a separate offense when the victims were young defenseless children. (People v. Albritten, supra, 67 Cal.App.4th at p. 659.) Nor can we.

Because Stewart's conduct as established by the evidence in this case showed he willfully assaulted Demarcus, who was under the age of eight and in his care, with such force as to a reasonable person would be likely to cause GBI and did in fact result in Demarcus's death, we conclude the life imprisonment imposed by section 273ab was proper and does not constitute cruel and/or unusual punishment.

Moreover, even if we review the matter by analyzing each factor under In re Lynch, as refined in People v. Dillon (1983) 34 Cal.3d 441, we reach the same conclusion. Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482-488; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311), the defendant has the burden of establishing his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254-255.) Stewart has not met such burden. Unlike the youthful 17-year-old first-time offender in Dillon, Stewart is a 29-year-old offender who has a past criminal history and who in this instance has intentionally assaulted a young child with such violent actions that a reasonable person would know such conduct would result in severe consequences. Although Stewart compares his sentence in the abstract with other sentences imposed for various degrees of intentional murders in California, he has presented no evidence regarding sentences imposed for offenses similar to his instant crime in other jurisdictions. Stewart simply attempts, by dealing in such abstracts, to detract from the seriousness of his violent acts against Demarcus in this case. The fact Stewart will receive a 25-year-to-life term under section 273ab for his brutal conduct simply does not shock the conscience or offend concepts of human dignity. Thus, we conclude section 273ab does not violate the constitutional prohibitions against cruel and/or unusual punishment.

DISPOSITION

The convictions and true findings that Stewart's prior aggravated assault with a deadly weapon constituted a strike and a serious felony conviction for enhancement purposes are affirmed. The true findings that Stewart's prior attempted robbery with a deadly weapon constituted a strike and a serious felony conviction for enhancement purposes are reversed. Accordingly, the sentence in this matter is vacated and the matter remanded for further proceedings and resentencing.

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HUFFMAN, J.

WE CONCUR:

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WORK, Acting P.J.

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HALLER, J.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE COURT:

The opinion filed January 4, 2000, is ordered certified for publication with the exception of part II, part III C and part IV.

The attorneys of record are:

Waldemar Halka for Defendant and Appellant.

Bill Lockyer, Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Jean Hume, Deputy Attorneys General, for Plaintiff and Respondent.

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WORK, Acting P.J.

Copies to: All parties