People v. Kao CA3

Filed 11/14/13 P. v. Kao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072749

Plaintiff and Respondent, (Super. Ct. No. 11F05472)

v.

WEILI KAO,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we note an error requiring correction of the abstract and affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND On May 11, 2004, defendant Weili Kao was at home with her stepdaughter, six- year-old Truly Lo and defendant’s 16-month-old biological daughter while her husband,

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Truly’s father, was working in the Bay Area. Defendant beat Truly with a plastic hanger, pulled her ears, and slapped her. She also knocked Truly to the floor twice, causing her head to strike the floor both times and strangled her to the point of unconsciousness. Defendant later put Truly to bed. Defendant was unable to wake Truly the following morning. She called two friends and asked the difference between a sleeping and unconscious child. After one of the friends advised her to take Truly to the hospital, defendant changed her clothes, dropped her own child off at her sister’s house, and then took Truly to the hospital. As a result of the attack, Truly was in a persistent vegetative state, but managed to breathe on her own after life support was removed three days later. In case No. 04F04427, defendant was convicted by a jury of three counts of corporal injury to a child (Pen. Code, § 273d, subd. (a))1 and one count of willful cruelty to a child (§ 273a, subd. (a)) with enhancements for great bodily injury (§ 12022.7) and personal use of a deadly weapon (§ 12022, subd. (b)(1)), and sentenced to 16 years six months in state prison. On December 23, 2010, Truly died as a result of the injuries inflicted by defendant. Defendant was charged with murder (§ 187) and assault on a child under the age of eight with force likely to produce great bodily injury resulting in death (§ 273ab, subd. (a)) and enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)). After the trial court denied defendant’s section 654 and once in jeopardy motion, the information was amended to strike the deadly weapon enhancement allegations and defendant pleaded no contest to second degree murder with the understanding that three years of custody credits for her time in prison on the prior charges would be waived. The