People v. Davis CA2/1

Filed 3/30/15 P. v. Davis CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B252393 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. MA055301)

v.

BERNICE QUEENETHEL DAVIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. David Walgren, Judge. Affirmed, modified, and remanded with directions. ______ Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, David C. Cook, and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent. ______

Bernice Queenethel Davis was convicted of the child abuse homicide of her two-year-old son, A.M., and related offenses. We conclude that her sentence on one count should have been stayed and that she received an incorrect number of days of presentence custody credit. We otherwise affirm. BACKGROUND The information charged Davis with one count of murder in violation of Penal Code section 1871 (count 1), one count of assault on a child causing death in violation of subdivision (a) of section 273ab (count 2), and two counts of child abuse in violation of subdivision (a) of section 273a (counts 3 and 4). It further alleged as to all counts that they were serious or violent felonies or offenses requiring registration under section 290, subdivision (c), and that prison custody time for the charged offenses must be served in state prison pursuant to section 1170, subdivision (h)(3). Davis pleaded not guilty and denied all allegations. The charges were tried to a jury, which found Davis guilty as charged on all counts. The court sentenced her to 31 years to life in state prison, calculated as follows: 25 years to life as to count 2, plus 6 years as to count 3. The court also imposed sentences as to counts 1 and 4 but stayed them pursuant to section 654, imposed various statutory fines and fees, required Davis to provide DNA samples, and credited her with 542 days of presentence custody. Davis timely appealed. The evidence introduced at trial showed the following facts: Shortly after 8:00 p.m. on January 26, 2012, Davis’s nine-year-old daughter called 911 to request an ambulance because her two-year-old brother, A.M., would not wake up. (She also told the 911 operator that there were three adults present.) Sheriff’s deputies arriving at the scene found A.M. not breathing and rushed him to the hospital, performing CPR on the way. Upon arrival at the local hospital, A.M. was cold and slightly bluish, was not breathing, had no pulse, and had no electrical activity in his heart, so he was clinically dead. Hospital staff were able to restart his heart and stabilize him sufficiently for air