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Name: People v. Malfavon
Case #: G029409
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/30/2002
Subsequent History: Rev. denied 12/18/02.
Summary

The evidence was sufficient that the child was in the defendant’s “care and custody” under Penal Code section 273ab (assault on a child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in death, by a person who has care and custody of the child) where he was the boyfriend of the mother, and had the responsibility of watching the child while the mother went to her apartment. The baby had also been left in his care before. A violation of Penal Code section 273ab (assault on a child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in death, by a person who has care and custody of the child) is not a necessarily lesser included offense of second degree murder, and thus one may be convicted of both offenses. Penal Code section 273ab (assault on a child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in death, by a person who has care and custody of the child) does not deny due process by imposing a 25-years-to-life term on a person without requiring proof of malice aforethought. It is not a child murder statute; it is more akin to a child abuse homicide statute.